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SAUNDERS v SOUTH CANBERRA HOLDINGS PTY LTD ACN 606 747 602 (Appeal) [2023] ACAT 71 (17 November 2023)

Last Updated: 17 November 2023

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SAUNDERS v SOUTH CANBERRA HOLDINGS PTY LTD ACN 606 747 602 (Appeal) [2023] ACAT 71

AA 1/2022 (RT 319/2021)

Catchwords: APPEAL – residential tenancies – whether structure is a fixture – who bears the evidentiary onus – whose intention is relevant and when it must be assessed – degree of annexation – mode and structure of annexation – whether removal would cause damage – object or purpose of annexation – nature of property subject to annexation – better enjoyment of land – whether item to be in position permanently or temporarily – structure is a fixture owned by appeal respondent – whether the structure is a mobile home or manufactured home under the Act – nature of agreement – whether the appellant is under an occupancy agreement or residential tenancy – whether the right of the appellant to occupy the site has been terminated and the effect of this – which version of the Act applied to the agreement and the notice of termination – appeal allowed

Legislation cited: Legislation Act 2001 ss 75B, 84

Residential Tenancies Act 1997 ss 6A, 6B, 6F, 71C, 71E, 71EA, 71EK, 83, Part 5A, Dictionary, Sch 1

Residential Tenancies Amendment Act 2020 (No 2)

Road Transport (Vehicle Registration) Act 1999

Cases cited: Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30

Australian Provisional Assurance Co Ltd v Coroneo [1938] NSWStRp 35; (1938) 38 SR (NSW) 700

AWF Prop Co 2 Pty Ltd v Ararat Rural City Council [2020] VSC 853

Bangura & Fan  [2013] ACAT 38 

Billing v Pill [1954] 1 QB 70

Carr v Finance Corporation of Australia (No. 2) [1982] HCA 43; (1982) 150 CLR 139

Darmanin v Cowan [2010] NSWSC 1118

Elitestone Ltd v Morris [1997] UKHL 15

Eon Metals NL v Commissioner of State Taxation (WA) (1991) 22 ATR 601

Holland v Hodgson [1872] UKLawRpCP 24; (1872) L.R. 7 C.P. 328

Litz v National Australia Bank Ltd [1986] ANZ ConvR 883

May v Ceedive [2006] NSWCA 369

Metal Manufacturers Ltd v Commissioner of Taxation [1999] FCA 1712

N.H. Dunn Pty Ltd v L.M. Ericsson Pty Ltd (1979) 2 BPR 9241

National Australia Bank Limited v Blacker [2000] FCA 1458

National Dairies WA Ltd v Commissioner of State Revenue [2001] WASCA 112

Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (receivers and managers appointed) [2017] NSWCA 8

Reid v Smith [1905] HCA 54; (1905) 3 CLR 656

Rocks v Southside Village [2018] ACAT 40

Saunders v South Canberra Holdings Pty Ltd ACN 606 747 602 [2023] ACAT 34

South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2021] ACAT 109

South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2022] ACAT 15

SPIC Pacific Hydro Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 395

State of New South Wales v Carver [2023] NSWSC 828

TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49

Yallingup Beach Caravan Park v Valuer-General (1994) 11 SR (WA) 355

Tribunal: Temporary Presidential Member Prof P Spender

Senior Member R Orr KC

Date of Orders: 17 October 2023

Date of Reasons for Decision: 17 October 2023

AUSTRALIAN CAPITAL TERRITORY )

CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 1/2022

BETWEEN:

KAYE SAUNDERS
Appellant

AND:

SOUTH CANBERRA HOLDINGS PTY LTD
ACN 606 747 602
Respondent

APPEAL TRIBUNAL: Temporary Presidential Member Prof P Spender

Senior Member R Orr KC

DATE: 17 November 2023

ORDER

The Tribunal orders that:

1. The appeal is allowed.
2. The decisions dated 11 November 2021 and 13 January 2022 are set aside.
3. The agreement dated 25 January 2013 between the appellant and respondent is terminated with effect from 17 November 2023.
4. The appellant must give the respondent vacant possession of the site by 18 December 2023.
5. The structure erected on the site is a fixture. The obligation of the appellant to give vacant possession by 18 December 2023 does not require the appellant to remove the structure, or to pay for or otherwise facilitate the removal of the structure.
6. The Tribunal will hear the parties on the question of costs. The appellant and respondent may make an application for costs by 1 December 2023, supported by any evidence and submissions. The other party may respond to that application by 15 January 2024, with any evidence and submissions. The Tribunal will determine any application on the papers, unless an application is made for a hearing by a party, and the Tribunal makes an order to this effect.

......................................
Temporary Presidential Member Prof P Spender
For and on behalf of the Tribunal

REASONS FOR DECISION

1. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the presently constituted tribunal. When referring to the first instance decisions, the Tribunal uses the expression ‘original proceedings’, ‘Original Tribunal’ or ‘Senior Member’.

Background

2. Kaye Saunders (Ms Saunders, original respondent, appellant) is a long-term occupant of a site (site) at the Canberra South Motor Park in Fyshwick (Southside Village) under a ‘licence to occupy’ dated 25 January 2013 (agreement). There is a structure on the site (structure) in which Ms Saunders lived from around January 2003. South Canberra Holdings Pty Ltd (South Canberra, original applicant, appeal respondent) is the Crown lessee and current operator of the Southside Village.
3. In summary terms, on 22 September 2020 Southside Village served a Notice of Termination of Occupation Agreement on Ms Saunders seeking vacant possession by 31 March 2021 (notice of termination). Ms Saunders did not give such vacant possession.
4. The nature of the relationship between the parties and the right to terminate was governed by the Residential Tenancies Act 1997 (RT Act). This Act draws a distinction between a residential tenancy agreement and an occupancy agreement. For some of the relevant period, the Act provided, in summary, that a residential tenancy agreement does not include an agreement for the right to occupy a site in a residential park for a manufactured home or mobile home. Part 5A of the RT Act was amended substantially by the Residential Tenancies Amendment Act 2020 (No 2) (Amendment Act) with the relevant provisions coming into effect on 3 March 2021. The Amendment Act added section 71EK, which provided that a party may only terminate an occupancy agreement for specified reasons.
5. Following the language used in the parties’ submissions in the appeal, the relevant provisions of the RT Act that operated after the Amendment Act came into effect are referred to below as the ‘New Legislation’.^[1] The version of the RT Act that applied before the date the Amendment Act came into effect is referred to as the ‘Old Legislation’.^[2] The appellant argued that the arrangements between the parties are governed by the New Legislation. Conversely, the appeal respondent contended that the Old Legislation applies.
6. Southside Village filed an application for resolution of a dispute under the RT Act in the tribunal on 14 April 2021, seeking an order for termination and vacant possession. In these proceedings, the Original Tribunal gave two decisions. The first, dated 11 November 2021, found that South Canberra’s notice of termination dated 22 September 2020 was valid (Original Interlocutory Decision).^[3] The second, dated 13 January 2022, ordered that the occupancy agreement was terminated with effect from 13 January 2022 and that Ms Saunders must give vacant possession of the site by 20 January 2022 (Original Final Decision).^[4]
7. Ms Saunders now appeals against these decisions. In a decision dated 27 September 2022, Acting Presidential Member Professor P Spender ordered that the Original Tribunal had erred in not allowing the parties to adduce further evidence as to the characterisation of the structure, and the parties were granted leave to adduce further evidence (First Appeal Decision).^[5] The further consideration of the appeal has proceeded on this basis.

Summary of the decision of this Appeal Tribunal

8. In this appeal, the main questions were as follows, with our summary answers.

Is the structure a fixture, and who owns it?

9. We find that the structure is a fixture. The structure is affixed to the land to some extent, and therefore, there is a presumption that it is a fixture, and the appeal respondent must lead evidence to show it is not a fixture. In our view, the appeal respondent has not displaced the presumption, rather the evidence indicates that the structure is a fixture.
10. The degree of annexation and the object or purpose of annexation are relevant. The relevant intention is assessed objectively at the time of annexation; the relevant intention is not the subjective intention of the current parties.
11. The affixation is minor, but the structure is not easily moved and re-erected.
12. The purpose of the structure was as a home, and even though that of itself does not determine that it is a residential dwelling house attached to the land, it was built for the better enjoyment of the land, and to provide a residence. In May v Ceedive (Ceedive), the Court of Appeal of the NSW Supreme Court held that in circumstances very similar to those here, a structure was a fixture, and the Tribunal finds this highly persuasive.^[6]
13. Therefore, the appeal respondent has not overcome the presumption and shown that the structure is not a fixture. As the structure is a fixture attached to the land, the appeal respondent owns the structure.
14. These findings are sufficient to allow the appeal. We consider the other issues in case they are relevant.

Was the basis on which Ms Saunders occupied the site a residential tenancy agreement or an occupancy agreement?

15. The Original Tribunal found that Ms Saunders occupied the premises under an occupancy agreement, and we do not find there was an error in this respect. Even if this is wrong, the appellant now seeks an order terminating any residential tenancy agreement.

What version of the Residential Tenancies Act 1997 applies to the purported termination?

16. The Original Tribunal found that the Old Legislation as of 22 September 2020, the date the Notice of Termination of Occupation was issued, applied to the termination. We do not find that the appellant has established that there was an error in this respect.

Was the notice of termination valid?

17. The Original Tribunal found that the notice of termination was valid. We do not think that the appellant has established that there was an error in this respect.

What orders should be made?

18. The orders that should be made are set out above.

Original Tribunal’s Decision

19. As noted, the Original Tribunal’s decisions were that South Canberra’s notice of termination dated 22 September 2020 was valid, and that Ms Saunders must give vacant possession of the site by 20 January 2022. The reasons for these decisions are set out in detail in the Original Interlocutory Decision and the Original Final Decision, and discussed in the First Appeal Decision. In summary, the decisions were:

(a) The licence to occupy was an occupancy agreement under the RT Act.^[7]

(b) While the licence to occupy provided for one week’s notice prior to termination, in one place, and one hour’s notice, in another, it cannot have been intended that these applied to an occupancy of this type.^[8] Rather reasonable notice was required. ^[9] The more than six months’ notice provided in this case was reasonable.^[10]

(c) The occupancy principles in section 71EA of the Residential Tenancy Act commenced on 3 March 2021, but these did not apply here because they did not have retrospective effect and South Canberra had an accrued right to terminate under section 84(2) of the Legislation Act 2001 (Legislation Act).^[11]

(d) It was appropriate in the circumstances to make an order for termination and vacant possession.^[12]

First Appeal Decision

20. As noted, the First Appeal decision held that the Original Tribunal erred in not allowing the parties to adduce further evidence as to the characterisation of the structure. The parties were therefore granted leave to adduce further evidence regarding the characterisation of the structure on the site.^[13]

Appeal documents

21. The appellant relied on an Application for Appeal dated 19 January 2022 (Application for Appeal). The appellant contended that there were two broad grounds for the appeal:

(a) Ground 1: The Original Tribunal failed to properly exercise its jurisdiction.

(b) Ground 2: The Original Tribunal failed to properly apply the RT Act.

22. Before the hearing, the appellant provided a written submission dated 21 February 2022 and a reply dated 21 March 2022. The appellant later provided submissions dated 13 February 2023 and a reply dated 15 March 2023. The appellant also provided a statement by Ms Kaye Saunders dated 14 March 2023 (which became exhibit A1).
23. The appeal respondent provided submissions dated 14 March 2022 and later 7 March 2023. The appeal respondent also provided a statement by Ms Marie Boustani dated 15 March 2023 (which became exhibit R1) and a statement by Mr Kevin Trayling dated 12 December 2021 (which became exhibit R2).
24. A hearing was held on 8 March 2023. At this hearing, there was a view of the site and the structure. After some discussion, that hearing was adjourned.
25. The hearing continued on 17 March 2023. At this hearing, counsel for the parties made opening submissions.^[14] Ms Saunders gave evidence and was cross-examined.^[15] Ms Boustani gave evidence but was not required for cross-examination.^[16] Mr Trayling gave evidence and was cross-examined.^[17]
26. At the end of the hearing, the Appeal Tribunal made orders that allowed the parties to provide further submissions. The appellant provided submissions dated 14 April 2023; the appeal respondent submissions dated 5 May 2023; and the appellant a reply dated 9 May 2023.

Summary of the parties’ arguments

27. A summary of the parties’ arguments is set out below, but their submissions and the evidence they led are examined in more detail under the heading “Consideration”.

Summary of appellant’s arguments

28. These have been complicated proceedings in which the issues in dispute and the positions of the parties have changed. The Appeal Tribunal will take into account all the submissions of the appellant, but the most relevant documents are the submissions of the appellant dated 13 February 2023, the submissions made at the hearing, and the submissions of the appellant dated 14 April 2023 and in reply dated 9 May 2023.
29. The appellant’s position was that the structure is a fixture which does not belong to the appellant.^[18] The appellant did not provide any expert evidence on this point, but argued that, on the basis of the photos provided by her, and those of Mr Trayling, and the evidence of Mr Trayling, the structure was a fixture because it: has windows and doors; has a tiled floor embedded in a concrete slab; has posts, door frames and other structural elements which are also embedded; is screwed together; has a roof; and could not be readily moved in one piece.^[19]
30. There was significant discussion of the relevance of the intention of the parties to this issue. The appellant argued that while an affixer’s intention might carry limited weight, here the appellant was not the builder, and her subjective view is irrelevant to the characterisation of the structure.^[20] Based on an analysis of the authorities, the appellant argued that:

(a) The characterisation of something as a chattel or a fixture is fundamentally an objective assessment.

(b) The affixer’s intention can have some relevance where there might be some doubt as to the proper characterisation. The case for having regard to the actual intention will be stronger where there is a common actual intention between the affixer and the entity that owns the land.

(c) Inasmuch as the affixer’s intention might have some relevance, the subjective intentions of third parties, in this case the appellant and the appeal respondent, will never be relevant.^[21]

31. The appellant referred to a range of case law and relied in particular on the decision of the NSW Court of Appeal in Ceedive, which concerned a brick miner’s cottage built around 1910. Mr May bought the house in 1969 and paid rent for the land on which it sat. The appellant relied on the finding of the Court of Appeal in that case that, notwithstanding the subjective intention of Mr May, the house was, in law, a fixture.^[22]
32. The appellant argued the structure was meant to be used as a home; was built without any intention that it be moved; was built for the better enjoyment of the land as opposed to the better enjoyment of the structure’s constituent parts; and that it was not, in fact, easy to move.^[23]
33. The appellant argued that the relevant date for the operation of the RT Act in relation to the termination was 31 March 2021, the date when the notice period elapsed, at which time there was only an accrued right for the appeal respondent to come to the tribunal and ask for an order.^[24] This is contrary to the decision of the Original Tribunal, which was that the relevant date was the date of the notice of termination, since at that time the appeal respondent had an accrued right to terminate.^[25] However, the appellant argued that if the previous version of the Act applied, there was nevertheless a right to terminate the agreement.^[26]
34. The relevant terms used in the RT Act were ‘mobile home’ and ‘manufactured home’. As to whether the structure is a mobile home, the appellant acknowledged that the structure contains what was once a caravan. However, she argued that this constitutes at most a third of the overall structure; has no functioning wheels; and has been permanently affixed and incorporated within the broader structure.^[27]
35. The RT Act provides for three requirements for a manufactured home.^[28] First, that it has the character of residential premises. It was accepted that this requirement is met. The second was that it “is designed, built or manufactured to be transported from 1 place to another for use as a home”. The appellant acknowledged that the evidence of the appeal respondent was that the structure could be moved, though with some effort, but that the evidence was that it was not designed or built to be transported from one place to another. The third requirement was that “it is not permanently attached to the land”. The appellant argued the evidence was that the structure was permanently attached to the land.^[29]
36. Therefore, the appellant argued the structure was not a manufactured home or mobile home for the purposes of the RT Act. Consequently, it was argued the agreement was not an occupancy agreement on this basis.
37. A significant argument of the appellant was that the agreement between the parties was a residential tenancy agreement. The appellant acknowledged that the agreement uses some words which would be more akin to an occupancy agreement than a residential tenancy. However, the appellant contended it was appropriate to have regard to the full nature of the agreement and the overall relationship. In particular, it was said that the appellant was no mere boarder or lodger, and that she had been responsible for the site for about 20 years, and for the majority of this time it had been her principal place of residence. These factors, it was argued, indicated a residential tenancy, notwithstanding the wording used in the agreement.^[30]
38. The appellant argued that, as the agreement was a residential tenancy agreement, and as the appeal respondent had given 26 weeks’ notice, the tribunal had power to terminate the agreement and it would be appropriate for the tribunal to terminate it.^[31]
39. However, the tribunal should not order the appellant to remove the structure, as she does not own it.^[32] It was also inappropriate for the appellant to be ordered to pay the rent arrears.^[33] We note that the claim for rent arrears has been abandoned.^[34]
40. The appellant argued that if, contrary to her primary submission, the tribunal finds that the agreement was an occupancy agreement, each of the terms of the agreement which provide for termination are inconsistent with the Occupancy Principles in the RT Act at the relevant time, and therefore the appeal respondent cannot terminate on a no cause basis, and there is no other basis to do so.^[35] There is therefore no power to terminate the agreement on the grounds pressed by the appeal respondent.^[36] However, the Tribunal has great difficulty with this submission, particularly in the light of the submission just noted that, as the agreement was a residential tenancy agreement, and as the appeal respondent had given 26 weeks’ notice, the tribunal had power to terminate the agreement and it would be appropriate for the tribunal to terminate it. We discuss this further below.
41. Further, even if the agreement is an occupancy agreement, and even if the tribunal were to order termination, the appellant would still not be liable for removal of the structure because it is a fixture.^[37] It would also still not be appropriate to order payment of the rent arrears.^[38]

Summary of appeal respondent’s arguments

42. As for the approach taken in relation to the appellant, the Appeal Tribunal will take into account all the submissions of the appeal respondent, but the most relevant documents are the submissions dated 7 March 2023, the submissions made at the hearing, and the submissions dated 5 May 2023.
43. The appeal respondent argued that the structure was not a fixture. It relied on the appellant’s failure to provide evidence on this issue.^[39]
44. The appeal respondent agreed that Ceedive provides significant guidance. Contrary to the appellant, it argued that Ceedive suggests that the intent for the permanency of the structure is important; that whether the structure is securely fixed is relevant; that whether the structure can be detached is relevant; and that a very slight fixing would support an inference that it was not intended to be permanent.^[40]
45. Having regard to these matters, the structure was not a fixture on the basis of five factors. First, the appeal respondent operated a caravan park with the features that guests signed an occupancy agreement; this could be terminated at short notice; guests paid a site fee, not rent; structures are readily able to connect and disconnect from power and water; the park provided shared amenities; and there were no inspections for the structures. Second, that the evidence of Mr Trayling was that there was minimal affixation of the structure, and third, that there was a process for removal of the structure with minimal damage. Fourth, the minimal affixation supports an inference that the structure was not intended to be permanent.^[41] Fifth, prior to the appeal, the appellant understood for 20 years that the structure was temporary, owned by her and subject to an occupancy agreement.^[42]
46. The appeal respondent also argued that the appellant purchased an already standing manufactured home. The intention of the parties was confirmed by the agreement, which provided a licence to occupy on a weekly basis. The level of affixation was minimal. This all suggests that the structure is not a fixture.^[43]
47. The appeal respondent also argued that the structure was a mobile home or manufactured home within the terms of the RT Act. A mobile home means a caravan or other registrable vehicle. The removal of wheels does not change that it is a caravan. The percentage make-up of the structure is not relevant as the annexures were added by the appellant or the previous owner, and these annexures could be readily removed. The structure was registrable pending the fixing of the wheels and removal of the annexures.^[44]
48. The structure was also said to be a manufactured home. It had the character of residential premises. It was built to be transported from one place to another for use as a home, and, on the basis of the evidence of Mr Trayling, it could be easily disassembled and transported. It was not permanently attached to the land on the basis of the evidence of Mr Trayling. The appellant had provided no expert evidence as to these issues.^[45]
49. The appeal respondent argued that the agreement was a licence to occupy on a weekly basis, that is, an occupancy agreement.^[46]
50. The appeal respondent, before the hearing, had argued that it was the legislation as at the date the notice of termination was issued, which was March 2021, which applied,^[47] adopting the finding of the Original Tribunal.^[48] During the hearing the appeal respondent took the view that it was the point in time at which the rights were created to terminate which was relevant, which was January 2013.^[49]
51. The appeal respondent argued that it had a right to terminate under section 71E(1)(h) of the RT Act, as found by the Original Tribunal.^[50]
52. In the alternative, it had a contractual right as set out in the Agreement. This right existed when it issued the notice of termination.^[51]
53. The appeal respondent also pointed to the policy implications if long stay caravan park owners face the prospect of acquiring structures built on their land by others, who generally operate on the joint understanding that they own them, and the park owners do not.^[52]

Consideration
Is the structure a fixture?

54. In Ceedive, Santow JA set out the rules determining whether an object has become a fixture:

[T]he intention which determines the question whether an object has, in law, become affixed to the land ... is at least predominately ‘the objective intention of the person who brings the object onto the land and affixes it there.’ That question is determined according to rules of law ...^[53]

55. The starting point under those rules of law is to identify where the onus of proof lies, as Santow JA further stated:

If an item is affixed to land to any extent (other than merely resting by its own weight) it is presumed, though the presumption is rebuttable, to be a fixture. The burden of proof lies on those who assert that such an object so resting is not a fixture.^[54]

Who bears the onus?

56. The New South Wales Court of Appeal in Ceedive defined the operation of the presumption in strict terms – the presumption arises if the item is affixed to the land to any extent.^[55] Therefore, at the time of the hearing, if the party asserting that the item is a fixture has established that some affixation has occurred, the party asserting that it is not a fixture must lead evidence in rebuttal.
57. The nature of the onus was explained by Ward J in Darmanin v Cowan (Darmanin):

It seems to me that the reference in the authorities to a party carrying an onus to establish that the purpose of annexation either was or was not such as to convert the chattel into a fixture is a reference to an evidentiary onus which may be imposed upon a party, depending upon the persuasive power in the particular circumstances of the case of the degree of annexation to move the court to the conclusion that the object in question either is, or is not, a fixture and thus part of the land, that is, it is not a legal onus of proof.^[56]

58. The appeal respondent argued that, if the Tribunal accepts that the starting point is that the appellant or her predecessor began with a movable caravan with additional structures on blocks, then the burden likely falls primarily on the appellant.^[57] The Tribunal does not accept this argument. In the present case, there is some affixation. The structure is affixed to the land to some extent. It is not merely resting on its own weight. The structure has a tiled floor which appears to some extent to be embedded in a concrete slab.^[58] The structure has certain posts, doorframes, and other structural elements which are embedded within the concrete slab.^[59] The structure has a roof which is fastened with metal fittings, which are attached in various places to the building elements of the structure.^[60] The appellant testified that, other than two roofs that she added to the structure in 2005 and 2007, the alleged affixation occurred prior to 2003 when she purchased the structure and began occupying the site.^[61]
59. The Tribunal therefore concludes that the appeal respondent bears the onus of establishing that structure is not a fixture. As will be explained below, the relevant date for assessing whether the structure is a fixture is prior to 2003.

Overall test about whether the structure is a fixture – degree of annexation and the object or purpose of that annexation

• 60. As stated by Conti J in NAB v Blacker (Blacker), the question whether an item has become a fixture depends essentially upon the objective intention with which the item was put in place.^[62] Two considerations that are commonly regarded as relevant to determining the intention with which an item has been fixed to the land are first, the degree of annexation and secondly, the object or purpose of annexation.^[63] Conti J’s analysis has been cited in many cases,^[64] including by the High Court,^[65] and provides a useful way to frame the issues for consideration. However, Conti J warned that there is no single test which is sufficient to determine whether an item of property is a chattel or a fixture, and the court ought to have regard to all the circumstances of the case in making its determination.^[66] No particular factor has primacy and each case depends on its own facts.^[67] Sackville AJA in Agripower Barraba Pty Ltd v Blomfield (Agripower) commented that the factors identified by Conti J are useful guides, but none are exhaustive nor definitive.^[68] The NSW Court of Appeal made similar comments in Ceedive, stating that the decision maker should look at all the surrounding circumstances.^[69]

Whose intention is relevant and when must it be assessed?

• 61. The relevant intention must be determined by the purpose of the affixation and at the time during which the affixation occurs.^[70] The intention is assessed objectively, based upon the circumstances applicable at the time of annexation rather than at any later point of time.^[71] Therefore, the Tribunal is required to consider the intentions of the parties to the original affixation which occurred prior to 2003, as discussed below.

62. Several cases, particularly Ceedive,^[72] emphasise that the relevant intention is not the subjective intention of the parties.^[73] Although evidence of subjective intention is not completely irrelevant,^[74] the present Tribunal considers that it is only appropriate to have regard to evidence of subjective intention where it assists an objective assessment. The subjective intentions of the current parties may provide some insight into that objective assessment but must be treated with caution where the original affixers are not the parties to the litigation.
63. The facts in Ceedive, which are briefly set out above at [31], are similar to the current case. The question for the court was whether the house constituted a fixture rather than a chattel.^[75] Santow JA stated:

[49] ... I should emphasise [that] whatever may have been Mr May’s intention or understanding, or that of the real estate agent with whom he dealt, if the house was in reality part and parcel of the ... land, in other words a fixture, his view of what he was acquiring cannot override the legal position; that the house, as an inseverable part of the realty, could not be bought and sold separately from the land to which it was affixed. Moreover Mr May’s intention could not be relevant to ... [its] status as a fixture for a further reason; he was not the original occupier at the time the house was built and who dealt with the then landowner.

...

[72] ... [T]he primary judge erred in considering the intention of Mr May to be relevant to the question of whether the house had the initial status of a fixture or a chattel. It was not Mr May who affixed the house to the land in the first place but his predecessor more than 50 years back. Therefore Mr May’s subjective belief that he was purchasing the house, based upon the documentation earlier referred to, would not alter the position at law. This on the evidence was that the house as a matter of law remained the property of the registered proprietor of the land. ^[76]

64. The appeal respondent in the current case argued that the appellant understood for 20 years that the structure was temporary, owned by her and subject to an occupancy agreement.^[77] The appellant conceded that she thought she owned the structure. But this belief does not displace a conclusion of law as to whether the structure is a fixture based on evidence of the objective intention of the parties at the time of affixation, taking into account the operation of the presumption. Similarly, evidence of arrangements between the parties about the appellant’s tenure at the park are only relevant insofar as the Tribunal can draw inferences about what arrangements preceded the appellant taking up occupation in 2003. So, for example, where the affixer has a limited interest in the land, the court might be more likely to infer temporariness. As Ward J stated in Darmanin:

[A] limited holder would be unlikely to intend making a “present to somebody else” (National Dairies), especially where the limited interest is of short or uncertain duration (Ball-Guymer v Livantes (1990) 102 FLR 327) where a prefabricated office building, capable of removal albeit after some dismantling of the structure was built by a licensee under a licence agreement terminable on one week’s notice, was held not to be a fixture.^[78]

65. The appeal respondent provided evidence and submissions about the parties’ intentions, asserting that this material proved an objective intention that the structure was temporary. The parties agreed that there was a licence that stated terms that the appellant’s occupation was terminable on one week’s notice. The correspondence between the appellant and Ms Hutcheson showed that the appellant was aware that the appeal respondent expected her to remove the structure upon vacating the park.^[79]
66. These arrangements are relevant to the addition of the roofs by the appellant in 2005 and 2007, but by that stage the most significant affixation had already occurred.^[80] The parties to the original affixation may have had similar arrangements or understandings, but we have no evidence about those arrangements, so we simply do not know.
67. It may be that the common law in relation to fixtures should be adjusted in cases such as this, to give greater weight to the subjective intentions of the current parties, where the objective and subjective intentions of the original parties are unknown, and the subjective intentions of the current parties have been in place for many years and have informed their relationship and conduct for many years. But given the historical and more recent judicial authorities we have discussed, it is not appropriate for this Tribunal to attempt to change the law in this respect.

Degree of annexation

68. In their analysis of the evidence, the parties submitted the following about the degree of annexation.

The appellant’s submissions

69. The appellant submitted the following:^[81]

As Mr Trayling accepted, parts of the structure are either sunk, or bolted to the concrete slab.^[82] Tiling and pavers are affixed to that concrete. Indeed, even Mr Trayling acknowledged:

(a) to dismantle the Structure, it would need to be reduced to building materials,^[83] or “demolition”^[84] or “waste product”;^[85]

(b) structural elements, including tiles, nails, and glass windows would be liable to break if the Structure were to be dismantled;^[86] and

(c) even without removing the concrete slab, the Structure would take a team of “three labourers on site with a supervisor” either three or four days;^[87]

(d) in order to remove the concrete slab as well (which would appear to be necessary in circumstances where that is the floor of the Structure), it would take five days for the aforementioned team to remove;^[88] and

(e) ... to reconstruct the Structure elsewhere would take two weeks.^[89]

70. The appellant also noted that Mr Trayling’s witness statement did not refer to the tiles that were affixed to the concrete floor. Mr Trayling conceded this in cross examination.^[90]
71. The appellant contended that this evidence established that:

[T]here is realistically nothing easy about the moving of this Structure. It would take (including dismantling, moving the building materials and reconstructing) [about] three weeks and would involve breaking the Structure apart (in some cases, literally breaking the constituent parts of the Structure).^[91]

The appeal respondent’s submissions

72. The appeal respondent said the following:
    53. As to the substance of Mr Trayling’s evidence, the most salient evidence was:

    (a) [The U-bracket] would require 3-5 minutes to remove;

    (b) Mr Trayling could not say whether the U-bracket was affixed with a bolt, or simply with glue;

...

(d) A “white post” [in the structure] looks like it is sitting on the concrete and has significant moisture and decay;

(e) Timber structures are “absolutely” sitting on the concrete;

(f) The “pavers” or “clay bricks” were laid haphazardly on the concrete slab, likely with mortar, and that these would be easy to remove;

...

(i) The timber frames ... could be easily disassembled and the screws would take “30 seconds” to remove;

...

(p) That he made a concession that he could not definitely say how the pavers were attached to the concrete slab.

...

55. Mr Trayling’s evidence shows that the structure is not ‘sunk into’ the concrete with the possible exception of a U-bracket. But even then, no party did, or could, provide any evidence about whether the U-bracket is bolted in, glued-on or simply resting until an attempt to remove it is made. In any event, Mr Trayling’s evidence is that it would be simple to remove either way.
56. The concrete in the structure was very likely a pre-existing car port and the concrete had been laid before the car port was enclosed. It is therefore highly unlikely that any aspect of the property is “sunk in”, with the possible exception of the U-bracket which remains unseen.
57. The only confirmed affixation is the water pipe and electrical extension cord, both of which can be readily removed.

...

59. The structure is not “securely fixed” in any meaningful way.^[92]
73. The appeal respondent contended overall, when applying the relevant tests, that:
    58. ... Mr Trayling’s evidence is that the structure can be removed without significantly destroying or damaging the structure or that the structure can “be detached without substantial injury to the thing itself or that to which it is attached.”

...

60. In fact, a “very slight” fixing would support an inference that it was not intended to be permanent.
61. The requirement to disassemble something to move it does not show any sort of intention for permanency. There is additionally no aspect of any test pointed to by either party that a structure must be moved as a whole.
62. When assessing the cost element of the removal of the structure, the only relevant cost is the cost of removal which has been provided as 4 days of labour with 3 workmen. What the Appellant does with the structure after its removal is a matter for the Appellant. There is no evidence on foot about the relevant cost of demolition as an alternative to relocation. Therefore, in the full circumstances, 4 days of labour is a relatively minor cost and, as per Rocks,^[93] one that should have always been anticipated by someone with relatively sophisticated knowledge of the operation of occupancy agreements.
63. Mr Trayling was able to speak authoritatively about the ease of disassembly and the steps required to do so.^[94]

Consideration of the degree of annexation

74. In a statement that has been cited in many cases, Conti J in Blacker enumerated factors relevant to determining the degree of annexation:

(a) the mode and structure of annexation;

(b) whether removal would cause damage to the land or buildings to which the item is attached;

(c) whether removal would destroy or damage the attached item of property;

(d) whether the cost of removal would exceed the value of the attached property.^[95]

75. The Tribunal will consider each of these factors below.

Modes and structure of annexation

76. The evidence shows that the affixation is minor. Taking into account the concessions made under questioning, Mr Trayling’s evidence established that the affixation at its highest comprises, first, some timber posts in the structure that may have been “sunk in”^[96] or are “bolted to”^[97] the concrete slab, and secondly tiles and/or pavers that have been attached to the concrete slab. The Tribunal finds that the structure is not simply resting on its own weight.
77. As Jordan CJ stated in Australian Provisional Assurance Co Ltd v Coroneo (Coroneo):

[I]f a thing has been securely fixed, and in particular if it has been so fixed it cannot be detached without substantial injury to the thing itself or to that which is attached, this applies strong but not necessarily conclusive evidence that a permanent thing was intended.^[98]

78. There are two elements here: the first is whether the structure is securely fixed. The second is whether it cannot be detached without substantial injury to the thing itself or to that which it is attached.
79. The fact that the fixing is minor helps to support an inference that it was not intended to be permanent. ^[99] However, there are many cases where the degree of attachment is slight, but the structures have been found to be fixtures. For example, in Reid v Smith (Reid) a wooden building that was resting on land by its own weight was found to be a fixture because it was brought there for the purpose of being used as a dwelling house.^[100] As described by Griffith CJ, the question in the case was whether “an ordinary dwelling-house, erected upon an ordinary town allotment ... but not fastened to the soil remains a chattel or becomes part of the freehold”.^[101] The High Court took into account building practices in North Queensland, where houses were built upon piers or piles with iron plates to break the continuity between the structure and the ground "so that white ants may not be able to reach the wood”.^[102]
80. Further, as Jordan CJ explained in Coroneo in the quote above at [77], the concept of ‘secure fixing’ is relative because it requires further inquiry as to whether it has been so fixed that it cannot be detached without substantial injury to the thing itself. This requires a consideration of the further limbs of Conti J’s test in Blacker noted above at [74] as discussed next.

Whether removal would cause damage to the land or buildings to which the items are attached

81. The evidence does not support a finding that the land would be damaged by removal of the structure. There may be some damage to the concrete slab by removal of tiles, but this does not appear to be significant.^[103]

Whether removal would destroy or damage the attached item of property

82. Mr Trayling was confident that the structure could be relocated without significant damage to its component parts. However, he agreed that the windows were likely to fracture when being removed because the glass was old and tiles would “obviously” break when they were being pulled up.^[104] He considered that the external panels could be removed and reconstructed with reasonable care.^[105]

Whether the cost of removal would exceed the value of the attached property

83. As stated above at [69] and [72], Mr Trayling gave evidence that the cost of removing the structure with reasonable care would be the cost of three labourers and one supervisor for up to five days. The cost of reassembling the structure would involve the same personnel and take two weeks.^[106] The appeal respondent argued that what the appellant does with the structure after its removal is a matter for the appellant, so the only relevant costs are the costs that would be incurred by disassembly with reasonable care – that is five days of labour with three labourers and one supervisor. The evidence provided at first instance was that the cost of removal was about $15,000.^[107]
84. No evidence was led about the value of the structure either at first instance or on the appeal. The witness statement of Mr Trayling noted that the structure does not comply with the definition under the Building Code of Australia as a class 1A structure – habitable dwelling due to various problems about ceiling height, inadequate natural light, poor ventilation, and inadequate safety standards such as electrical cabling.^[108] The statement also noted that the building was in a state of disrepair and dilapidation.^[109] This was admitted by the appellant.^[110]
85. The evidence about the cost of disassembly and reassembly was primarily dealt with by the parties in their submissions about the intention regarding the permanence or temporariness of the structure. This is discussed below.

Purpose of the annexation

86. On the Blacker test noted above at [60], the degree of annexation needs to be considered together with the purpose of attachment.

Appellant’s submissions

87. The appellant submitted that the manifest purpose of the structure, which can be ascertained objectively, is that it be used as a home:

It has the ordinary features of a home, including several rooms (including bedrooms, a bathroom, a lounge, and a laundry), a back veranda, an ordinary front door, and a garden. Indeed, the Respondent’s own expert, Mr Trayling frequently referred to the Structure as being a “home” or having features which one would find in a “home”.^[111]

88. Secondly, the appellant contended that it is “quite plain” that the structure was built without the objective intention of it being moved from place to place.^[112]
89. In support of the second argument, the appellant relied upon the evidence of Mr Trayling regarding what was required to dismantle the structure and said that the effect of his evidence was that dismantling the structure would entail reducing it to building materials and demolition. Further, the timeframes indicate that it is not a structure that was intended to be moved from place to place. The appellant compared the structure to the mobility of structures such as a caravan, domestic tent or a portacabin.^[113] The appellant said that the evidence of Mr Trayling makes it clear that there is realistically nothing easy about moving the structure because:

[I]t would take (including dismantling, moving the building materials and reconstructing) about 3 weeks (in some cases, literally breaking the constituent parts of the structure).^[114]

90. The appellant also argued that the structure was there for the better enjoyment of the land.

This is not comparable to a situation where a machine is tethered to the ground to ensure better operation of the machine itself. It is almost definitional that a home is a fixed to the ground for the better enjoyment of that land. After all, it would be difficult to live upon land unless the structure provided sufficient shelter to do so.^[115]

Appeal respondent’s submissions

91. The appeal respondent argued that there was never an inference that the structure should be permanent or anything other than a temporary dwelling situated on a property, the nature of which is a caravan park. The appeal respondent said that the Tribunal can infer an intention that the structure was only temporary based on the appellant’s original purchase agreement and the entering into of the agreements referred to as a “licence to occupy”.^[116] The appeal respondent contended that the intention of the Canberra South Motor Park, as a trading name of the former owners, can be adduced by examining the 2013 agreement entered into between the parties. That document, presumably prepared by Canberra South Motor Park, clearly evinces an intention for a “licence to occupy on a weekly basis”. The appeal respondent contended that it would not be open to the Tribunal to draw from this “any inference that there was an intention for the placement of a permanent structure on [the site] or that the occupant enjoyed any broader rights”.^[117]
92. The appeal respondent also invited the Tribunal to draw inferences of temporariness from what might be described as the ‘evolution’ of the construction of the structure, that it probably originally consisted of a caravan with an annex that was enclosed. The appellant conceded that about one third of the structure consisted of a caravan which is movable. The structure was described by the appeal respondent as a “caravan with annexures”.^[118]

Consideration of the purpose of annexation

• 93. Conti J in Blacker set out the “variety of considerations that may be taken into account”.^[119] We deal with these considerations below, albeit in a different order to the Blacker test:

(a) the nature of the property the subject of affixation;

(b) whether the attachment was for the better enjoyment of the property generally or for the better enjoyment of the land and/or buildings to which it was attached;

(c) the function to be served by the annexation of the item;

(d) whether the item was to be in position either permanently or temporarily.^[120]

The nature of the property the subject of affixation

94. As stated above at [87], the appellant argued that the manifest purpose of the structure, which can be ascertained objectively, is that it be used as a home. Some of the cases take a slightly different approach when the nature of the property is a ‘home’ or ‘dwelling house’ compared with a commercial arrangement involving, for example, plant and equipment.^[121] The representative of the appellant argued that “it would be very hard to imagine anything that conveys a greater degree of permanency than something being a residential dwelling”.^[122] The appellant relied upon statements by the House of Lords in Elitestone Ltd v Morris (Elitestone):^[123]

If one considers the object or purpose which the structure serves by being placed where it is, it was clearly placed there to enable the amenity of [the estate] to be enjoyed through the establishment of a residence.^[124]

95. The purpose of a ‘home’ may be distinguished from, for example, a caravan which can be moved and enjoyed in many places. The purpose of a home is to better enjoy the land upon which it is constructed.^[125] Insofar as this submission contemplates a home being a way to better enjoy land, the Tribunal agrees with this proposition. This is discussed below. However, the Tribunal notes the comments in Elitestone that when bringing the “individual bits of wood onto the site”,^[126] one may infer an intention to create a residence or home, but it does not necessarily answer the question of whether they thereby became “part and parcel of the land”.^[127] The court in Ceedive agreed with the submission that “the nature of a residential dwelling house is that it is normally regarded as part of the [realty] on which the house is constructed”.^[128] While there is no doubt that the present structure is a home or part of a home, the structure may or may not be classified as a residential dwelling house. Further, some caution must be exercised when considering these cases in the current context because a structure that is a ‘home’ may have elements of temporariness that are inconsistent with it being a fixture. Cleary the current definitions of ‘mobile home’ and ‘manufactured home’ in the RT Act are examples of this.

Better enjoyment of the land

96. The appellant contended that it is objectively clear that the structure is there for better enjoyment of the land, arguing that this situation is “not comparable to a situation where a machine is tethered to the ground to ensure better operation of the machine itself.”^[129] The appeal respondent did not make any significant submissions on this factor.
97. The Tribunal agrees that the structure was there for the better enjoyment of the land rather than the better enjoyment of the thing itself.

The function to be served by the annexation of the item

98. It is clear that the function served by the structure was to provide a residence or extend an existing residence. As noted above, the appellant submitted:

[I]t has the ordinary features of a home, including several rooms ( ... bedrooms, a bathroom, a lounge, and a laundry), a back veranda, an ordinary front door, and a garden.^[130]

99. The significance of these features was articulated by Blackburn J in Holland v Hodgson (Holland):

Thus, blocks of stone placed one on the top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones, if deposited in a builder’s yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels.^[131]

Whether the item was to be in position permanently or temporarily

100. This factor was explained by Santow J in Ceedive in the following terms:

One important factor pointing strongly in favour of the house being a fixture is the fact that all the evidence points to the house being affixed with the intent that it remain in position permanently or for an indefinite or substantial period, in this case from at least since 1910. No predecessor to Mr May purported to sever or remove it, nor has Mr May. There is certainly no suggestion that the house was intended to remain in position only for some temporary purpose such as a mining operation that had long ceased.^[132]

101. As stated above, the Tribunal must not base its findings upon the parties’ understanding of the arrangements they had in place from 2003 when the appellant acquired the structure. Rather, it must draw inferences from the arrangements that may have been in place when the affixation occurred, which was sometime prior to 2003. Apart from a general inference that the appeal respondent and its predecessor in title has been offering temporary accommodation for a long time, there are no other inferences that can be drawn because no evidence was provided.
102. The appellant argued that Ceedive could not be distinguished and should be followed.^[133] Based on its premise that the structure consists of a “caravan with annexures”, the appeal respondent argued that the construction of the structure in the present case is distinguishable from the double-brick cottage in Ceedive.^[134] The appeal respondent relied upon the decision in Yallingup Beach Caravan Park v Valuer-General (Yallingup), where the Land Valuation Tribunal of Western Australia needed to decide whether a park home in a caravan park was a fixture.^[135] Adopting an objective assessment, the tribunal found that the park homes did not constitute fixtures. The tribunal stated the following:

The facts of the present case need to be closely considered. The park homes in question are similar to prefabricated buildings. They are transported in a completed state to their respective sites. The park homes are able to be moved or transported by way of wheels which attach to the frame of the park home itself.

The park homes have connections of a temporary nature to drainage, water and electricity services. The park homes rest by their own weight on concrete blocks on foundations which are set into the ground and are used for (relatively) short-term accommodation, and have been so used for some time.

There is evidence of the subjective intention of the appellant that the park homes not constitute part of the land but were placed with the intention that they be moved on a regular, if infrequent, basis.

Considering the facts above, in the context of the appropriate test, it appears on balance that the intention that ought to be imputed or presumed of the appellant in relation to the particular park homes at this caravan park is that they do not constitute fixtures or improvements to the land. Factors which are particularly relevant to this finding include the use for which the park homes were designed, the relatively slight degree of annexation to the land (which, in any event appears to be primarily for the purpose of stability), and that the park homes may be removed with little or no damage either to themselves or to the land. This conclusion is also supported by the fact that the park homes in question are generally of a more temporary or moveable nature than the transportable homes which were the subject of the decisions above.^[136]

103. The appeal respondent submitted that the decision of Yallingup dealt with a “park home” which arguably has a greater level of affixation and permanency than a caravan with annexures.^[137]
104. The Tribunal considers that Yallingup is clearly distinguishable because the objective intention was that the park homes be moved from time to time. Further, the park homes are transported in a completed state to their respective sites and little or no damage is done either to the park homes or the land when they are removed. The question about the ‘mobility’ of the structure is addressed below.
105. The appeal respondent further contended that ACAT has also dealt with similar issues previously and arrived at substantially the same conclusion as the tribunal in Yallingup. The appeal respondent quoted Rocks v Southside Village (Rocks).^[138] The relevant part of Senior Member Anforth’s decision is as follows:
     34. A site only contract in a caravan park is at the very least a contractual licence to use the site for agreed usages and subject ‘park rules’.
     35. In the present case the applicant was subjected to detailed house rules and constant supervision by the landlord. He was moved around to different sites of the caravan park three times during his stay, and shared other facilities with other occupants of the park. The fact that he could be moved from site to site at the park owner’s discretion indicates that there was no agreed security of tenure on any particular site; or at best there was [a] tenancy at will in relation to any particular site.
     36. Generally park owners need the flexibility to move residents around to meet business needs. On the other hand it is unfortunately commonly the case that once a resident became established in the park with their own van they build permanent structures around their van including cement slabs, verandahs, plumbing and sewerage. After these improvements the vans or cabins are no longer transportable. This occurred to a limited degree in the case of the present applicant.
     37. Parenthetically, the question then arises at common law concerning the effect of a park owner watching and implicitly (or even explicitly) sanctioning the improvements by the resident. At what point do the estoppel principles of Walton’s Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 arise in favour of the resident.
     38. Most site agreements contain ‘make good’ clauses which required that the site be returned to the owner at the end of the agreement in the same condition in which it was taken (minus fair wear and tear). The parties must be taken to know that once the above kind of improvements are made that any eviction will likely result in the need for demolition of those improvements in order to return the site to the condition in which it was originally received causing an obvious and consequential loss to the resident.

...

44. For the above reasons, the present Tribunal is of the view that absent express agreement to the contrary, a resident spends capital on his/her van at their own risk. This includes the risk of being evicted for any number of reasons, one of which would be for breach of park rules.^[139]
106. The Tribunal acknowledges that Rocks assists the Tribunal by providing a context for the situation that might have applied when the original affixation occurred. However, with respect, the extract above states the opinion of the Senior Member that permanent structures were being created in the park at the time the events occurred in that case, which was 2017. It is not clear whether the practices described by the Senior Member operated prior to 2003.
107. Returning to Ceedive, the court there referred to the house being affixed “with the intent that it remain in position permanently or for an indefinite or substantial period”.^[140] In deciding whether the intention of the original affixation was permanent or, more plausibly in this case, for an indefinite or substantial period, the mobility of the structure is relevant.

Dismantling the structure

108. There was no dispute between the parties that the structure would need to be disassembled to be moved. The question is whether this provides evidence of an intention that the structure remains in place for an indefinite/substantial period. The Tribunal agrees in part with the submission made by the appeal respondent that the fact that something must be disassembled to move it does not necessarily mean that the intention of “permanency” is established. The Tribunal also agrees with the appeal respondent’s contention that the structure need not be moved as a whole. However, the Tribunal acknowledges the appellant’s submission that a structure that is difficult to disassemble is less likely to be a temporary structure, assuming that it will be relocated. An alternative interpretation is that the original affixer intended to build the structure, and then at some later time remove it and destroy the materials that were used to build the structure.

Damage to or destruction of the structure

109. In Elitestone, Lord Lloyd stated:

[T]he photographs show very clearly what the bungalow is, and especially what it is not. It is not like a Portakabin, or mobile home. The nature of the structure is such that it could not be taken down and re-erected elsewhere. It could only be removed by a process of demolition. This, as will appear later, is a factor of great importance in the present case. If a structure can only be enjoyed in situ, and is such that it cannot be removed in whole or in sections to another site, there is at least a strong inference that the purpose of placing the structure on the original site was that it should form part of the realty at that site, and therefore cease to be a chattel.^[141]

110. In a further comment in Elitestone, that was quoted in Ceedive, Lord Lloyd said:

A house which is constructed in such a way so as to be removable, whether as a unit, or in sections, may well remain a chattel, even though it is connected temporarily to mains services such as water and electricity. But a house which is constructed in such a way that it cannot be removed at all, save by destruction, cannot have been intended to remain as a chattel.^[142]

111. The Tribunal has no evidence that the alternative interpretation (that the original affixer intended to build the structure and then destroy it) would have operated at the time of the original affixation, and notes Mr Trayling’s evidence that the structure can be moved without destroying it, but some damage would occur. Further, he testified that it would take about three weeks to dismantle and reassemble the structure. The Tribunal therefore agrees with the appellant’s interpretation that the structure is not easily moved and will suffer some damage by disassembly. In several cases, structures have been found to be fixtures if destruction or substantial damage is caused to the structures by moving them, even where the degree of annexation is relatively slight.^[143]

The application of Ceedive

112. There are some significant differences in the facts between the present case and Ceedive. The construction of the structure differs from that in Ceedive, where the house was of a “solid brick construction”.^[144] The structure may have originally included only the caravan which may have been readily portable or removable. However, at some point prior to the appellant acquiring the structure, some construction occurred, which prima facie led to a degree of affixation. It is not unusual for residents of caravan parks to create annexes to caravans. However, in this case a structure was built upon a concrete slab, which had some of the walls “embedded” into that concrete slab. Tiles were attached to the concrete slab. Further, during the appellant’s occupancy, she added roofs to the structure.
113. Some of the facts that have been established in the present case are concordant with Ceedive; that is:

(a) the structure appears to have been used as a residence on the site since it was constructed;

(b) we have no explicit statements of intent concerning the intention with which the structure was constructed;

(c) the purpose for which the house was constructed may be inferred to be a residence;

(d) the parties to the proceedings and perhaps some members of the caravan park may have thought that the appellant “owned” the structure;

(e) the structure has been in place for at least 20 years without any attempt to sever it.

114. The Tribunal is not bound by Ceedive, but it is highly persuasive.

Policy implications

115. The appeal respondent also pointed to the policy implications if long stay caravan park owners face the prospect of acquiring structures built on their land by others, who generally operate on the joint understanding that they own them, and the park owners do not own them.^[145] However as we have discussed, whether something is a fixture depends on the particular facts of the case. This case has some unusual facts, and the decision is limited to these facts. But it has been decided on the application to these unusual facts of principles which have been in operation for over a hundred years and continue to be affirmed by the courts.^[146]
116. If long stay caravan parks wish to avoid the result that they own structures affixed to their land by others, they should ensure that they manage their parks so as to avoid structures being so affixed to their land. We do not think that this is an onerous obligation. As we discuss below, the affixing does not of itself make an occupancy agreement a residential tenancy agreement. Legislation could be made to address these issues if these results are thought to be inappropriate.

Conclusion on the fixture question

117. Taking into account the surrounding circumstances that have been established by the evidence, the circumstances here in their totality do not rebut the presumption in favour of the structure being a fixture. On the contrary, the circumstances indicate that the structure is affixed to the land.
118. The consequence of the finding above that the structure is a fixture is that the appeal respondent owns the structure.

Does this resolve the appeal?

119. To a large extent, this finding deals with this appeal. The parties have withdrawn the claims for arrears of rent and rent abatement that were made from time to time during the appeal.^[147]
120. Both parties seek orders about payment for the removal of the structure from the site.^[148] The Tribunal has concluded that the structure is a fixture and, consequently, the appeal respondent owns the structure. The appellant therefore has no obligation to pay for its removal or to otherwise facilitate its removal.
121. The appeal respondent commenced these proceedings seeking an order that the agreement be terminated. It has maintained this position. Further, in the appellant’s submissions of 13 February 2023 and 15 March 2023, while she continues to argue that the agreement was a residential tenancy, and that the New Legislation applies, she seeks an order that “the residential tenancy agreement ... is terminated”.^[149] Given that the appellant agrees to, indeed seeks, such an order, in our view it is of little actual relevance anymore whether the agreement is a residential tenancy agreement or occupancy agreement, nor which version of the Act applies.
122. Although the Tribunal is grateful for the thoughtful submissions made by lawyers acting for the parties on these issues, they are no longer relevant to the outcome of the proceedings. Further, it seems to us that the appellant will receive little benefit from keeping the occupancy agreement, if that is what it is, on foot, and possibly have ongoing liabilities. Further, the matter is before the Tribunal, which has broad jurisdiction and significant powers, which include, in our view, to make an order that the agreement, whatever it is, is terminated.^[150]
123. On this basis, we think the matter could be determined without considering the difficult issues about whether there is a residential tenancy agreement or an occupancy agreement, and which version of the RT Act applied at relevant times. But in case these issues are raised in the future, we set out our conclusions about them.

Was the structure a mobile home or a manufactured home under the RT Act?

124. In addition to the analysis above about whether the structure is a fixture, based on the common law, the Tribunal now considers whether the structure fell within the definitions ‘mobile home’ or ‘manufactured home’ in the RT Act.
125. In the discussion below, the Tribunal will examine whether the arrangements between the parties constituted a residential tenancy or an occupancy agreement, and whether the Old Legislation or the New Legislation applied to the notice of termination. In this case, the definitions of ‘mobile home’ and ‘manufactured home’ operate in this context only, that is, they are relevant only to determining whether there is a residential tenancy agreement or an occupancy agreement. They are not relevant to whether the structure is a fixture, which we have considered and determined above. At this point, we will consider the definitions that applied under both versions of the statute.
126. The Old Legislation contained one relevant definition – mobile home, as follows:

mobile home means a dwelling (whether on wheels or not) that can be transferred from place to place and re-erected. ^[151]

127. The New Legislation contained two relevant definitions as follows:

manufactured home means a structure, other than a caravan or tent, that—

(a) has the character of residential premises; and

(b) is designed, built or manufactured to be transported from 1 place to another for use as a home; and

(c) is not permanently attached to land.

mobile home means a motor vehicle, caravan or other trailer, or other registrable vehicle under the Road Transport (Vehicle Registration) Act 1999 that is used as a home.

Appellant’s submissions

128. The appellant argued that the structure is not a mobile home or a manufactured home. The appellant conceded that the structure contains what was once a caravan, and that the caravan would ordinarily be considered to be a mobile home within the meaning of the RT Act. However, in this case the caravan in issue constitutes at most one third of the overall structure (and has done so for well over a decade); has no functioning wheels (and has not had functioning wheels for well over a decade); and has been permanently affixed to, and incorporated within, the broader structure (and has been for well over a decade). Therefore, in circumstances where only one third of the overall structure could ever be considered a “mobile home” and where even that third is so inextricably affixed to the remainder of the structure (and where it is itself plainly not movable, having no wheels) it is “self-evident” that structure cannot be considered to be a mobile home as that term is defined in the RT Act.^[152]
129. As regards the definition of “manufactured home”, the appellant argued that, although the structure satisfied the first criterion in the definition because it has the character of residential premises, it did not satisfy the second or third criteria because it is not designed, built, or manufactured to be transported from one place to another, and it is permanently attached to land. The appellant’s submissions were based upon characteristics of the structure, such as the floor tiling, as well as the material in Mr Trayling’s report about what might be involved in dismantling the structure.^[153]

Appeal respondent’s submissions

130. The appeal respondent submitted that the structure should first be classified as a mobile home, but in the alternative, it is open to the Tribunal to find that it is a manufactured home.^[154] The appeal respondent relied upon Mr Trayling’s report contending that the structure could “easily be disassembled and transported”.^[155] Further, the appeal respondent argued that the percentage makeup of the structure is not relevant for any determination because the evidence of Mr Trayling was that the annexures can be readily removed, which would leave the caravan sitting on its own, albeit without wheels.^[156] The appeal respondent argued that the appellant’s position appeared to be that the structure, or at least a significant portion of it, was once a caravan, and therefore a mobile home, but through the process of removing wheels from the caravan and attaching various items to the caravan, it had been transformed to the extent that it is capable of being considered a residential dwelling.^[157] The appeal respondent submitted that it was open to the tribunal to find that the structure is a mobile home on the basis that it is presumably registrable pending the fixing of wheels and removal of annexures.^[158] Regarding the question of whether the structure was a manufactured home, the appeal respondent relied on Mr Trayling’s evidence, arguing that it was erroneous to treat the partial tiling of one of the floors as definitive of it being permanently affixed, therefore unable to be moved or classified as a manufactured home. The appeal respondent argued that that is not the case, because a raised surface can be tiled.^[159]

Consideration

131. This is not a consideration of whether the structure is a fixture, where there is a presumption, as discussed above at [56]-[59].
132. The Tribunal has concluded that the structure does not fall within any of the definitions of “mobile home” or “manufactured home” in the New Legislation or the Old Legislation. The Tribunal agrees with the appellant’s submissions that the structure cannot, in any meaningful sense, be transferred from place to place and re-erected. Certainly, the caravan can be relocated, and Mr Trayling testified that once the caravan was “cleared of surrounding structures” it could be “lifted and loaded onto a flatbed truck for removal”.^[160] The caravan may be registrable if wheels were attached to it, but it still only constitutes one third of the structure. The remaining two thirds of the structure would not be a registrable vehicle under the Road Transport (Vehicle Registration) Act 1999 (which is required for the definition of ‘mobile home’ under the New Legislation); could not, practically speaking, be transferred from place to place and re-erected (under the definition of ‘mobile home’ in the Old Legislation); and is not designed, built, or manufactured to be transported from one place to another (under the definition of ‘manufactured home’ in the New Legislation). The Tribunal relies on the analysis of Mr Trayling’s evidence about dismantling and reassembling the structure which is summarised above at [69] and [72].

Residential tenancy agreement or occupancy agreement?

133. We will now consider whether the agreement constituted a residential tenancy agreement or an occupancy agreement under the RT Act. The Original Tribunal concluded that it was an occupancy agreement, based upon the finding that the structure was a mobile home under the Old Legislation.^[161]
134. The Original Tribunal found that the appellant was a long-term occupant of the relevant site under a written “licence to occupy” dated 25 January 2013,^[162] which was granted to her by the appeal respondent’s predecessor in title. The appeal respondent purchased the residential park in August 2015 and, by notice of attornment, became the grantor of the appellant’s ‘licence to occupy’.^[163] The Original Tribunal noted that the “licence to occupy” was headed “Application for Licence to Occupy on a Weekly Basis” and had certain terms. For example, it contemplated stays that might be less than four weeks; one week’s notice is required prior to termination of the accommodation; and Park Management has the right to determine the licence upon giving one hour’s notice, which may be given at any time.^[164]
135. The Original Tribunal applied the provisions of the RT Act as in force on both 25 January 2013 – when the ‘licence to occupy’ was executed,^[165] and on 22 September 2020 – when the notice of termination was given.^[166] Section 71C(1) of the RT Act at those times set out the requirements for an agreement to be an occupancy agreement. In particular, under the agreement, the grantor must give the occupant the right to occupy premises for the occupant to use as a home; the right is given for value; and the agreement is not a residential tenancy agreement. The Original Tribunal noted that ‘premises’ is defined in the Dictionary to the RT Act to include (a) any habitable structure whether it is fixed to the land or not; (b) part of any premises; and (c) any land, buildings or structures belonging to the premises.^[167] The Original Tribunal noted that section 71C(2) of the RT Act provides that the agreement may be express or implied, or in writing, oral, or partly in writing and partly oral.^[168]
136. On appeal, the appellant argued that the tribunal is first required to consider whether the agreement was a residential tenancy agreement and, only if the answer to that question is in the negative, is the further question asked as to whether the agreement answers the definition of an occupancy agreement.^[169] This argument is based on the wording of section 71C in the Old Legislation, in particular section 71C(1)(d), which states that an agreement is an occupancy agreement if, amongst other things, “the agreement is not a residential tenancy”. The Old Legislation stated that a residential tenancy agreement did not include an agreement for the right to occupy premises if the premises are a caravan or a mobile home, as then defined.^[170]
137. Section 71C was substantially amended by the New Legislation: subparagraph (d) was deleted. The amended section 71C relevantly states that an agreement is an occupancy agreement, except if section 6B applies (which provides that an agreement is a residential tenancy agreement if it says it is), where there is an agreement to occupy a site in a residential park, or for the purpose of the occupant placing a manufactured home or a mobile home on the site. The definition of residential tenancy agreement under the New Legislation includes that “the agreement is not an occupancy agreement under section 71C”, reversing the previous situation.^[171]
138. We have concluded above that the structure does not fall within the definition of ‘mobile home’ or ‘manufactured home’ under the New or the Old Legislation, we therefore now consider the evidence about the agreement between the parties.
139. The appellant conceded that some words that were used in the “licence to occupy” were more akin to an occupancy agreement than a residential tenancy agreement. However, the appellant argued that the Tribunal should have regard to the full nature of the agreement and the overall relationship between the parties. In this respect, the appellant pointed to certain factors that are indicative of the arrangement being a residential tenancy agreement: that the appellant had “charge” over the site for approximately two decades; it was her principal place of residence for at least 10 to 14 years; she was required to connect the structure to the appeal respondent’s electricity and water supply and pay connection fees to the appeal respondent; the structure had its own small garden; and the agreement did not give the appeal respondent the right to access the structure or the garden at will.^[172] The appeal respondent argued that the proper characterisation of the agreement differentiated it from a “regular Residential Tenancy Agreement and operated in favour of finding the existence of an Occupancy Agreement.” The factors noted by the appeal respondent include: there is no requirement to pay a bond or provide inspections; the agreement is on a week-by-week basis; it has been described in all documents as a “licence to occupy on a weekly basis”; the appellant had access to other common grounds and services provided by the appeal respondent, such as a shared laundry and shower block; the appeal respondent did not enjoy a right of access under the agreement to the structure; the appeal respondent provided other shared services to all sites such as electricity in exchange for a fee, but any occupants were required to connect these utilities to their structures.^[173]
140. The Tribunal considers that the evidence that was adduced at first instance and on appeal supports the Original Tribunal’s application of section 71C of the RT Act, and the Senior Member’s conclusion that the arrangement between the parties was an occupancy agreement. Certain elements of the agreement show a clear intention to create an occupancy agreement in 2013 and to operate over time with that understanding. The appellant conceded that no bond had been required or paid and that the agreement is on a week-by-week basis, and these two factors weighed against the agreement being a residential tenancy.^[174] The clause allowing termination of the occupation on very short notice is also inconsistent with a residential tenancy agreement.^[175] This clause would be subject to the occupancy principles under part 5A of the RT Act, but the clause still evinces an intention to create an occupancy agreement. These elements should be given more weight than the factors relied upon by the appellant that point to a residential tenancy agreement. As we have noted, the RT Act has detailed definitions of residential tenancy agreement and occupancy agreement, and sets out the relationship between the two. These definitions will generally apply, but they do not state that they are the only basis for finding something is a residential tenancy agreement or occupancy agreement, and the factors we have noted can be relevant. In this case, on balance, the Tribunal considers that the arrangement was not a residential tenancy agreement for the purposes of section 71C(d) under the Old Legislation, and was an occupancy agreement.
141. The Tribunal concludes that the appellant has not established that the Original Tribunal erred in finding that the “licence to occupy” dated 25 January 2013 was an occupancy agreement under part 5A of the RT Act.^[176]
142. As we have noted it is not necessary for the Tribunal to determine this issue in this appeal, and further, even if we are wrong about this conclusion that the agreement was an occupancy agreement and the agreement was a residential tenancy agreement, the appellant now seeks an order that any such residential tenancy is terminated.

Which version of the RT Act applies to the notice of termination?

143. As stated above, the Original Tribunal held that the Old Legislation applies. The reasoning of the Senior Member, as stated in the Original Interlocutory Decision, was as follows:
     76. The ‘occupancy principles’ in section 71EA of the [New Legislation] commenced to apply to the occupancy agreement on 3 March 2021. From that date any additional terms of the occupancy agreement that were inconsistent with the occupancy principles, the RT Act, or any other territory law, became void pursuant to section 71E(2).
     77. Thus, if the applicant wished to give notice of termination on or after 3 March 2021, the applicant could do so only in accordance with section 71EK.
     78. Section 75B of the Legislation Act 2001 requires that there must be a clear indication in the legislation if a law is intended to commence retrospectively. There is nothing in the Amendment Act to indicate an intention for the amendments to operate retrospectively. The Amendment Act does not affect the previous operation of part 5 of the RT Act, or anything done or begun under part 5. Further, pursuant to section 84(2) of the Legislation Act 2001, a remedy in relation to an existing right under part 5 may be exercised and the right may be enforced as if part 5 had not been amended by the Amendment Act.
     79. A notice of termination that was validly issued under part 5 of the RT Act, was not invalidated by the commencement of the Amendment Act. Section 71EK is irrelevant to the outcome in this case. The applicant is entitled to seek to enforce the termination of the occupancy agreement upon expiry of the notice period by applying to the ACAT for an order under section 83(1)(i) terminating the occupancy agreement and granting vacant possession of the site.^[177]
144. The appellant argued that the Senior Member had erred in this reasoning. During the appeal hearing, the question arose regarding the application of section 84 of the Legislation Act 2001 and Carr v Finance Corporation of Australia (No. 2).^[178]
145. The Tribunal has considered the parties’ submissions about this issue,^[179] and notes the complex questions that arise in deciding if the appeal respondent had an accrued right under section 84 of the Legislation Act to enforce the termination of the occupancy agreement upon expiry of the notice period on 31 March 2021, after the Amendment Act had come into effect on 3 March 2021. The occupancy principles in the New Legislation may have had a bearing on the termination of the occupancy agreement. However, we do not think that the appellant has shown an error in the Original Tribunal’s finding.
146. Further, the issue has now been superseded by the conduct of the appeal. In submissions dated 15 March 2023, the orders sought by the appellant included an order that the agreement between the appellant and the appeal respondent be terminated as of 1 July 2023. This is on the basis that the agreement was a residential tenancy, but as we discussed above, we do not see this is as a relevant distinction. Therefore, the appellant in effect consents to the termination.

Has the right of the appellant to occupy the site been terminated, and what is the effect of this on the structure?

147. Based on the foregoing, the Tribunal finds that the appellant has consented to the termination of the occupancy agreement and the orders made above give effect to the termination. For the sake of completeness, the Tribunal notes that the Original Tribunal found that the appeal respondent can terminate the agreement on reasonable notice,^[180] and that the period of notice was reasonable.^[181] There is no error in these findings.
148. As stated by the appellant, the primary dispute between the parties pertains to “corollary orders” in the proceedings.^[182] The Tribunal confirms that the parties have withdrawn the claims for arrears of rent and rent abatement that were made from time to time during the appeal.^[183] However, both parties seek orders about payment for the removal of the structure from the site.^[184]
149. The Tribunal has concluded that the structure is a fixture and, consequently, the appeal respondent owns the structure. The appellant has no obligation to pay for its removal or to otherwise facilitate its removal. Pursuant to section 83(1) of the RT Act, the Tribunal has made the orders above to give effect to this conclusion and its consequences. We note that the appeal respondent wishes to be heard on the question of costs.^[185]

Conclusion

150. The Tribunal has allowed the appeal and set aside the orders at first instance. The Tribunal has found first that the structure is a fixture, and the appeal respondent therefore owns the structure. This is sufficient to allow the appeal, but in case it is relevant we also find that, second, the appellant has not shown an error in the finding of the Original Tribunal that the agreement between the parties was an occupancy agreement. Third, the appellant has not shown an error in the finding of the Original Tribunal that the Old Legislation applied and the appeal respondent has validly terminated the occupancy agreement. At any rate the appellant now seeks an order terminating any residential tenancy agreement. The Tribunal has therefore ordered the appellant to give vacant possession of the site within one month. Following on from the Tribunal’s finding that the structure on the site is a fixture, the appellant’s obligation to give vacant possession does not require her to remove, pay for, or otherwise facilitate the removal of the structure.

......................................

Temporary Presidential Member Prof P Spender

For and on behalf of the Tribunal

^[1] Residential Tenancies Act 1997, as at 31 March 2021 and 14 April 2021 (R 71) (New Legislation)

^[2] Residential Tenancies Act 1997, as at 22 September 2020 (R 66) (Old Legislation)

^[3] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2021] ACAT 109

^[4] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2022] ACAT 15

^[5] Saunders v South Canberra Holdings Pty Ltd ACN 606 747 602 [2023] ACAT 34

^[6] May v Ceedive [2006] NSWCA 369

^[7] Original Interlocutory Decision at [60]

^[8] Original Interlocutory Decision at [65]

^[9] Original Interlocutory Decision at [68]-[69]

^[10] Original Interlocutory Decision at [75]

^[11] Original Interlocutory Decision at [78]

^[12] Original Final Decision at [66]

^[13] First Appeal Decision, orders

^[14] Transcript of proceedings on 17 March 2023, for the appellant page 7, line 13-page 35, line 13; for the appeal respondent page 36, line 9-page 43, line 19; for the appellant in reply page 43, line 24-page 45, line 3

^[15] Transcript of proceedings on 17 March 2023, page 47, line 40-page 79, line 19

^[16] Transcript of proceedings on 17 March 2023, page 84, line 41-page 85, line 10

^[17] Transcript of proceedings on 17 March 2023, page 86, line 14-page 139, line 45

^[18] Appellant’s submissions dated 13 February 2023 at [3](a)(i) and [17]-[27]; transcript of proceedings on 17 March 2023, page 7, line 13-page 25, line 11; appellant’s submissions dated 14 April 2023 at [2](a), [3]-[34], [39]-[44]

^[19] Appellant’s submissions dated 13 February 2023 at [18]

^[20] Appellant’s submissions dated 15 March 2023 at [17]-[23]; appellant’s submissions dated 14 April 2023 at [2](a) and [3]-[34]

^[21] Appellant’s submissions dated 14 April 2023 at [32], based on the discussion at [4]-[31]

^[22] Appellant’s submissions dated 14 April 2023 at [26]-[30], [32]-[33]; Ceedive at [49], [65], [68], and [72]; appellant’s reply submissions dated 9 May 2023 at [2]-[4]

^[23] Appellant’s submissions dated 13 February 2023 at [21]; appellant’s submissions dated 14 April 2023 at [2](b) and [39]-[42]

^[24] Appellant’s submissions dated 15 March 2023 at [27]-[49]; transcript of proceedings on 17 March 2023, page 31, line 14-page 35, line 13, see especially page 33, line 10 and page 34, line 3

^[25] Original Interlocutory Decision at [78]-[80]

^[26] Appellant’s submissions dated 15 March 2023 at [50]

^[27] Appellant’s submissions dated 13 February 2023 at [7]-[8]

^[28] See New Legislation, Dictionary ‘manufactured home’

^[29] Appellant’s submissions dated 13 February 2023 at [9]-[16]

^[30] Appellant’s submissions dated 13 February 2023 at [28]-[32]

^[31] Appellant’s submissions dated 13 February 2023 at [33]-[34]

^[32] Appellant’s submissions dated 13 February 2023 at [35]-[39]

^[33] Appellant’s submissions dated 13 February 2023 at [40]-[45]

^[34] Appellant’s submissions dated 15 March 2023 at [53]; appeal respondent’s submissions dated 5 May 2023 at [75]

^[35] Appellant’s submissions dated 13 February 2023 at [47]

^[36] Appellant’s submissions dated 13 February 2023 at [47]-[48]; see also appellant’s submissions dated 21 February 2022 at [2](b)

^[37] Appellant’s submissions dated 13 February 2023 at [49]

^[38] Appellant’s submissions dated 13 February 2023 at [50]-[52]

^[39] Appeal respondent’s submissions dated 7 March 2023 at [41]

^[40] Transcript of proceedings dated 17 March 2023, page 36, line 9-page 37, line 39; appeal respondent’s submissions dated 5 May 2023 at [7]-[12], referring in particular to Ceedive at [73]-[74]

^[41] Mr Trayling’s evidence is summarised at appeal respondent’s submissions dated 5 May 2023 at [53]-[63]

^[42] Transcript of proceedings on 17 March 2023, page 38, line 30-page 40, line 21; appeal respondents’ submissions of 5 May 2023 at [15] and the discussion at [16]-[29]

^[43] Appeal respondent’s submissions dated 7 March 2023 at [2]-[6] and [41]-[53]

^[44] Appeal respondent’s submissions dated 7 March 2023 at [2] and [30]-[35]

^[45] Appeal respondent’s submissions dated 7 March 2023 at [2] and [36]-[40]

^[46] Appeal respondent’s submissions dated 7 March 2023 at [57]-[59]

^[47] Appeal respondent’s submissions dated 7 March 2023 at [54]-[56]

^[48] Original Interlocutory Decision at [76]-[79]

^[49] Transcript of proceedings on 17 March 2023, page 39, line 25-page 43, line 19, see especially page 42, lines 2-4

^[50] Appeal respondent’s submissions dated 7 March 2023 at [67]-[69]

^[51] Appeal respondent’s submissions dated 7 March 2023 at [63] and [70]; Appeal respondent’s submissions dated 16 July 2021 at [21]-[23]

^[52] Appeal respondent’s submissions dated 5 May 2023 at [64]-[71]

^[53] Ceedive at [65], citing Reid v Smith [1905] HCA 54, (1905) 3 CLR 656 (emphasis added)

^[54] Ceedive at [66] (emphasis added)

^[55] Ceedive at [66] (emphasis added)

^[56] Darmanin v Cowan [2010] NSWSC 1118 at [197], citing National Dairies WA Ltd v Commissioner of State Revenue (National Dairies) [2001] WASCA 112 at [15]

^[57] Appeal respondent’s submissions dated 5 May 2023 at [29]

^[58] Appellant’s submissions dated 13 February 2023 at [18](b), transcript of proceedings on 17 March 2023, page 125, line 44-page 127, line 32

^[59] Appellant’s submissions dated 13 February 2023 at [18]

^[60] Appellant’s submissions dated 13 February 2023 at [18]

^[61] Witness statement of Kaye Saunders dated 14 March 2023 at [6]

^[62] [2000] FCA 1458 at [10]

^[63] Blacker at [10]

^[64] Recent examples include SPIC Pacific Hydro Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 395; AWF Prop Co 2 Pty Ltd v Ararat Rural City Council [2020] VSC 853 (AWF); and Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (receivers and managers appointed) [2017] NSWCA 8

^[65] TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49 at [24]

^[66] Blacker at [16] citing N.H. Dunn Pty Ltd v L.M. Ericsson Pty Ltd (1979) 2 BPR 9241, 9246

^[67] See Conti J in Blacker at [16], citing Eon Metals NL v Commissioner of State Taxation (WA) (1991) 22 ATR 601, 606 per Ipp J

^[68] [2015] NSWCA 30 at [81]

^[69] Ceedive at [74]

^[70] Australian Provisional Assurance Co Ltd v Coroneo [1938] NSWStRp 35; (1938) 38 SR (NSW) 700, 712; see also Darmanin at [199] and National Dairies at [20]

^[71] Darmanin at [199], see also Metal Manufacturers Ltd v Commissioner of Taxation (Metal Manufacturers) [1999] FCA 1712 at [167] per Emmett J; and Blacker at [10].

^[72] Ceedive at [75]

^[73] Ceedive at [68]

^[74] Blacker at [12], citing N.H. Dunn Pty Ltd v L.M. Ericsson Pty Ltd (1979) 2 BPR 9241, 9244-5

^[75] Ceedive at [44]

^[76] Ceedive at [49], [72]

^[77] Appeal respondent’s submissions dated 5 May 2023 at [15](e)

^[78] Darmanin at [201]

^[79] Annexure to witness statement of Marie Boustani dated 15 March 2023 – ‘Condition of your premises’ dated 12 June 2019, page 9

^[80] Metal Manufacturers at [167], per Emmett J: “The question of whether property constitutes a chattel or a fixture must be determined at the time of affixing. Of course, if additional attachment occurs or the nature of the attachment changes, the status of the property may change. However, mere effluxion of time is not relevant because the question must be capable of answer as at the time of attachment”

^[81] Appellant’s submissions dated 14 April 2023 at [41](b)

^[82] Transcript of proceedings on 17 March 2023, page 90, line 6-page 91, line 35, page 93, line 17-page 94, line 18, page 113, line 15-page 114, line 19

^[83] Transcript of proceedings on 17 March 2023, page 108, line 1-page 109, line 8, page 114, lines 3-12, page 117, line 16-page 119, line 13

^[84] Transcript of proceedings on 17 March 2023, page 115, lines 24-46

^[85] Transcript of proceedings on 17 March 2023, page 115, lines 24-46

^[86] Transcript of proceedings on 17 March 2023, page 116, lines 1-33, page 137, line 40-page 138, line 2

^[87] Transcript of proceedings on 17 March 2023, page 136, line 1-page 137, line 28

^[88] Transcript of proceedings on 17 March 2023, page 136, line 1-page 137, line 28

^[89] Transcript of proceedings on 17 March 2023, page 136, line 1-page 137, line 28

^[90] Appellant’s submissions dated 14 April 2023 at [37]

^[91] Appellant’s submissions dated 14 April 2023 at [41](e)

^[92] Appeal respondent’s submissions dated 5 May 2023 at [53], [55]-[57], [59]

^[93] Referring to Rocks v Southside Village [2018] ACAT 40

^[94] Appeal respondent’s submissions dated 5 May 2023 at [58], [60]-[62]

^[95] Blacker at [14], citing Metal Manufacturers at [160]-[163]

^[96] Transcript of proceedings on 17 March 2023, page 91, lines 26-34

^[97] Transcript of proceedings on 17 March 2023, page 91, lines 5-24

^[98] [1938] NSWStRp 35; (1938) 38 SR (NSW) 700, 712, citing Holland v Hodgson [1872] UKLawRpCP 24; (1872) LR 7 CP 328, 335

^[99] Coroneo, 712-713

^[100] [1905] HCA 54

^[101] Reid at [1]

^[102] Reid at [2]

^[103] Transcript of proceedings on 17 March 2023, page 96, lines 8-23

^[104] Transcript of proceedings on 17 March 2023, page 137, line 40-page 138, line 2

^[105] Transcript of proceedings on 17 March 2023, page 101, line 33-page 102, line 7, page 138, lines 10-19

^[106] Transcript of proceedings on 17 March 2023, page 136, lines 1-35

^[107] Original Final Decision at [52]

^[108] Annexure A to witness statement of Kevin Trayling dated 12 December 2021 at [2]

^[109] See generally Annexure A to witness statement of Kevin Trayling dated 12 December 2021, esp at [2], [9]

^[110] Transcript of proceedings on 17 March 2023, page 67, line 27-page 68, line 4

^[111] Appellant’s submissions dated 14 April 2023 at [41](a)

^[112] Appellant’s submissions dated 14 April 2023 at [41](b)

^[113] Appellant’s submissions dated 14 April 2023 at [41](c)

^[114] Appellant’s submissions dated 14 April 2023 at [41](e)

^[115] Appellant’s submissions dated 14 April 2023 at [41](d)

^[116] Appeal respondent’s submissions dated 7 March 2023 at [49]

^[117] Appeal respondent’s submissions dated 7 March 2023 at [48]

^[118] Appeal respondent’s submissions dated 5 May 2023 at [19]

^[119] Blacker at [13], approved in AWF at [202]-[204] and Agripower at [79], [81]

^[120] Blacker at [13]

^[121] For example, Elitestone Ltd v Morris [1997] UKHL 15, Ceedive and Reid; compare Darmanin.

^[122] Transcript of proceedings on 17 March 2023, page 10, lines 6-8

^[123] [1997] UKHL 15

^[124] Elitestone at [47]

^[125] Transcript of proceedings on 17 March 2023, page 10, lines 31-33

^[126] Elitestone at [22]

^[127] Elitestone at [22]

^[128] Ceedive at [71], citing Billing v Pill [1954] 1 QB 70

^[129] Appellant’s submissions dated 14 April 2023 at [41](d)

^[130] Appellant’s submissions dated 14 April 2023 at [41](a)

^[131] Holland v. Hodgson [1872] UKLawRpCP 24; (1872) L.R. 7 C.P. 328, 335

^[132] Ceedive at [73]

^[133] See generally appellant’s submissions dated 15 March 2023 at [6]-[26]

^[134] Appeal respondent’s submissions dated 5 May 2023 at [10]

^[135] (1994) 11 SR (WA) 355

^[136] Yallingup, 359

^[137] Appeal respondent's submissions dated 5 May 2023 at [19]

^[138] [2018] ACAT 40

^[139] Rocks at [35]-[38], [44]

^[140] Ceedive at [73]

^[141] Elitestone at [8] (original emphasis)

^[142] Ceedive at [66] quoting Elitestone at [21]

^[143] For example, Litz v National Australia Bank Ltd [1986] ANZ ConvR 883; Reid at [2]; and the discussion of this element in Blacker at [26]-[28]

^[144] Ceedive at [71](d)

^[145] Appeal respondent’s submissions dated 5 May 2023 at [64]-[71]

^[146] For a recent example, see State of New South Wales v Carver [2023] NSWSC 828

^[147] Appellant’s submissions dated 15 March 2023 at [53], appeal respondent’s submissions dated 5 May 2023 at [75]

^[148] Appellant’s submissions dated 15 March 2023 at [53], Appeal respondent's submissions dated 7 March 2023 – ‘Orders Sought’, Order 1(c)

^[149] Appellant’s submissions dated 13 February 2023 at [46](c)(i); appellant’s submissions dated 15 March 2023 at [53](b)(iii)

^[150] Sections 76 and 83 of the current RT Act

^[151] Old Legislation, Dictionary ‘mobile home’

^[152] Appellant’s submissions dated 13 February 2023 at [7]-[8]

^[153] Appellant’s submissions dated 13 February 2023 at [9]-[15]

^[154] Appeal respondent's submissions dated 7 March 2023 at [40]

^[155] Appeal respondent's submissions dated 7 March 2023 at [31]

^[156] Appeal respondent's submissions dated 7 March 2023 at [32]

^[157] Appeal respondent's submissions dated 7 March 2023 at [33]

^[158] Appeal respondent's submissions dated 7 March 2023 at [35]

^[159] Appeal respondent's submissions dated 7 March 2023 at [39]

^[160] Annexure A to witness statement of Kevin Trayling dated 12 December 2021 at [5]

^[161] Original Interlocutory Decision at [58]-[60]

^[162] Appellant’s book of documents – ‘Canberra South Motor Park, Application for Licence to Occupy on a Weekly Basis’ dated 25 January 2013, pages 1-2

^[163] Original Interlocutory Decision at [1]

^[164] Original Interlocutory Decision at [4]-[5]

^[165] Original Interlocutory Decision at [12]-[20]

^[166] Original Interlocutory Decision at [70], and footnote 19 “The relevant version of the RT Act at that time was revision No. 66”

^[167] Original Interlocutory Decision at [12], footnote 6, citing Old Legislation, Dictionary ‘premises’

^[168] Original Interlocutory Decision at [13]

^[169] Relying upon section 71C RT Act and Bangura & Fan  [2013] ACAT 38  at  [43] ; Appellant’s submissions dated 13 February 2023 at [29]; Transcript of proceedings dated 17 March 2023, page 28, line 24-page 30, line 2

^[170] Old Legislation section 6F

^[171] Section 6A(1)(b)

^[172] Appellant’s submissions dated 13 February 2023 at [31]

^[173] Appeal respondent's submissions dated 7 March 2023 at [58]

^[174] Appellant’s submissions dated 13 February 2023 at [31]

^[175] Variously periods of one hour and one week, see Original Interlocutory Decision at [4]-[5]

^[176] Original Interlocutory Decision at [60]

^[177] Original Interlocutory Decision at [76]-[79]

^[178] [1982] HCA 43

^[179] Appellant’s submissions dated 15 March 2023 at [27]-[49]; see also the earlier submissions by the appellant at first instance dated 12 May 2021 at [3]-[8]; and appeal respondent’s submissions dated 14 March 2022 at [46]-[57]

^[180] Original Interlocutory Decision at [61]-[70]

^[181] Original Interlocutory Decision at [72]-[75]

^[182] Appellant’s submissions dated 13 February 2023 at [35]

^[183] Appellant’s submissions dated 15 March 2023 at [53]; appeal respondent’s submissions dated 5 May 2023 at [75]

^[184] Appellant submissions dated 15 March 2023 at [53]; appeal respondent’s submissions dated 7 March 2023 – ‘Orders Sought’, Order 1(c)

^[185] Appeal respondent’s submissions dated 5 May 2023 at [72]