1. The First Respondent ("Tymbook") is the former tenant of land ("the Land") in the Lower Esplanade St Kilda upon which there is erected the Palais Theatre ("the Theatre"). The tenancy was held pursuant to a 50 year Crown Lease granted by the Applicant ("the Crown") in 1956. The term of the lease expired on 31 March 2006 whereupon the Land reverted to being unalienated Crown Land. There has never been a Fee Simple estate created with respect to it nor any other estate apart from the Crown Lease.
2. Following an order for possession granted by this Tribunal and an unsuccessful appeal, Tymbook was evicted from the Land and the Theatre on or about 4 June 2007. It was allowed back in under license some days afterwards for a short period. Very shortly before it left it removed a number of light fittings. These are now in storage and the parties dispute ownership of them. Other light fittings of the same manufacture are still in the Theatre and ownership of these is also disputed. One other such light fitting was lost during the move.
3. The light fittings in dispute were made for the Theatre by William Bedford Limited ("Bedford"), a Melbourne manufacturer, and were installed just before the Theatre opened in November 1927. I shall use the name "the Bedford Lights", to identify those removed by Tymbook, the one that was lost and those of the same manufacture left in the Theatre following the move.
4. By this proceeding I must decide whether the Bedford Lights belong to the Crown or to Tymbook. The Second Respondent, Miss Harper, supports Tymbook's claim to them but makes no such claim for herself. She is a party to this proceeding for reasons other than this dispute as to the ownership of the Bedford Lights.
5. It is conceded by both sides that ownership depends upon whether the Bedford Lights were, at the time of their removal, fixtures and so part of the Land in which case they are the property of the Crown or whether they were chattels in which case they are the property of Tymbook, because it expressly purchased them by contract of sale from the original owner Palais Theatre Pty Ltd, formerly called Palais Pictures Pty Ltd ("Palais Pictures"). For the reasons that follow, I have decided that they are and were at all material times chattels and so they are the property of Tymbook. The reasons for this decision follow.

1. There has been extensive litigation between the parties concerning the nature of Tymbook's occupancy of the Land, its right to remain in possession of the Land and the Theatre and its title to the improvements on the Land. Unusually, all of these disputes have been brought in this one proceeding which started life as an application by the Crown to recover possession of the Land and the Theatre from Tymbook ("the Possession Proceedings") and then was amended to include the other claims.
2. The current dispute is articulated in an amended application filed on 23 August 2007 in which the Crown is seeking (inter alia) orders that the Bedford Lights be returned, a declaration that they are the property of the Crown and damages, restitution and compensation. An order was also sought for mesne profits. By order of the Tribunal made on 27 August 2007 the claims for mesne profits, ownership of the Bedford Lights and damages were directed to be determined separately. The claim for mesne profits has been settled and the claim for damages awaits separate hearing.
3. By their defence Tymbook and Miss Harper deny that the Bedford Lights were fixtures and assert that they are and were chattels and the property of Tymbook. By its counterclaim Tymbook seeks declarations that it is the owner of the Bedford Lights and certain other items, orders permitting it to collect the removed lights, which are now in the possession of the Crown, the remaining lights and other items still in the Theatre and damages. The argument before me only related to the Bedford Lights, the parties having indicated that ownership of the other articles either were expected to be resolved. If this does not happen, the parties wish the counterclaim to be re-listed. The claim for damages has not been argued yet.

1. Following a lengthy hearing before Deputy President Macnamara, the Possession Proceedings were determined at first instance on 15 November 2006 and an order for possession was made for reasons set out in a lengthy judgment ("the Possession Judgment"). Tymbook then appealed to the Supreme Court of Victoria ("the Appeal") and, following a 5 day hearing, Harper J in a written judgment ("the Appeal Judgment") dismissed the Appeal.
2. Amongst its defences, Tymbook and Miss Harper assert that this Tribunal has no jurisdiction to hear this dispute. That argument has already been rejected by Deputy President Macnamara and that was not disturbed in the Appeal. Pending a contrary determination by the Court of Appeal, I cannot entertain it.

1. Although I had some earlier involvement with the mesne profits claim in this proceeding, this particular dispute first came before me on 3 December 2007 and was adjourned part heard on 5 December. It recommenced on 7 April 2008 finally concluded on 9 April when I reserved my decision.
2. Mr Garde of Her Majesty's counsel appeared with Mr Fox of counsel for the Crown and Mr Murdoch of Her Majesty's counsel appeared with Mr Reilly of counsel for Tymbook and Miss Harper.
3. Evidence was given by affidavit. The Crown tendered affidavits from a Mr Galimany, a Librarian who had obtained historical material concerning the Theatre and its construction; from a Mr Lovell, an expert in building who has had extensive experience in the maintenance and restoration of heritage buildings and from Mr Heale, a Principal Policy Officer, Public Land Services, from the Department of Sustainability and Environment. Tymbook relied upon five affidavits from Miss Harper with voluminous exhibits, an affidavit from Mr Newman, solicitor, as to a number of photographs taken of the Bedford Lights and from a Mr Hyams, a former director of Palais Pictures.

1. Much of the evidence led was irrelevant to the dispute I have to decide. This was because the evidentiary material had been put together for hearings on all issues and it would have been a needless expense to the parties to require them to reprepare everything for each hearing. The large amount of irrelevant material provoked considerable debate as to the appropriateness of admitting into evidence much of the material on each side and I indicated that I would express in these reasons what I was and was not relying upon. As to the most relevant matters however there was little disagreement. I will start by setting out what is common ground or already determined between the parties and then deal with the more contentious matters.
2. The history of the Land and the construction of the Theatre is set out in great detail in the Possession Judgment and the Appeal Judgment and I do not need to repeat it all. The affidavit material upon which that decision and judgment were based is included in the material that has been put before me. The findings that have already been made on that material bind the parties in regard to those issues. Further findings may be made in regard to matters not addressed in either judgment. I make some such findings and mention the matters that appear to me to be of particular significance to the question that I have to decide.

1. The Land forms part of what is now known as the St Kilda triangle. It lies close to the beach in an area used since the 19th century for recreation. In 1884 the Land, together with other land surrounding it, was permanently reserved for public recreation ("the Reserve").
2. In 1906 a committee was set up to manage the Reserve ("the Committee"). The Committee granted various permissive occupancies to entrepreneurs to conduct entertainment venues on different parts of the Reserve. Pursuant to one such arrangement a ballroom was erected on the Land which was converted to a picture theatre in 1915. This picture theatre, known as Palais Pictures, was operated by three brothers from America namely, Herman, Harold and Leon Phillips ("the Phillips Brothers").
3. In 1926 the picture theatre was destroyed by fire whilst under reconstruction. The Phillips Brothers proposed to rebuild it at an anticipated cost of ₤75,000.00. On 16 February 1926, one of them wrote to the Secretary of the Committee stating:

"Under the present land Act, it is not possible to obtain a longer lease than 21 years. I may say that our loss in view of the further outlay, above our insurance, will be ₤50,000.00 and in order to finance it, it is necessary to be able to have a straight out rental proposition. I am in consequence asking for a 21 years tenure at a set annual rental ... I am asking for a sympathetic and broad view on this proposition, as you can realise that the amortisation of ₤75,000.00 and interest over a period of 21 years, is nearly impossible". (My emphasis)

In this letter Mr Phillips referred to a "lease" but since the Land, along with all the other land in the Reserve, had been permanently reserved it could not be leased; all that he could expect would be a permissive occupancy. (I should add here that the ultimate cost of building and fitting out the Theatre turned out to be not £75,000 but more than twice that sum).

1. On 24 February, the Secretary of the Committee wrote to Mr Phillips stating that it would offer him:

"...the permissive occupancy for 21 years on the same conditions at present with the exception of the fee for the first 10 years would be at the rate of ₤800.00 per annum and the remainder of the term ₤900.00 per annum."

1. The letter stated that there would be a provision that, at the expiry of the term of the permissive occupancy, the right to the site:

"...should be put up for public auction with a valuation of the improvements in your favour of an amount to be agreed upon between the committee and yourself and in the event of any failure to agree that each appoint an outside arbitrator to be agreed upon by both parties for the purpose of arriving at a determination as to the value of such improvements".

1. To implement this agreement a document was executed on 19 April 1926 between the Chairman and Secretary, representing the Committee, of the one part and Herman Frank Phillips of the other part. Clause 11 of that agreement states:

"That the conditions, covenants and provisos in these presents shall apply to the heirs successors, executors or administrators of the said Herman Frank Phillips and also to any person or persons to whom he may transfer this permissive occupancy. No objection may be raised by the St Kilda Shore Committee to transfer it to a person or persons of good repute or to a company".

"That the said Herman Frank Phillips shall at the expiration or sooner determination of the term quietly and peaceably deliver up to the St Kilda Shore Committee the land of which permissive occupancy is hereby granted".

"That 2 years before the date of expiry of this permissive occupancy the right to a fresh permissive occupancy to a term of 21 years from the date of such expiry will be offered to public auction together with all improvements at an upset price for the occupation of the site of ₤700.00 per annum with a separate additional payment for the value of the improvement. The other conditions of the new permissive occupancy to be similar to those contained herein. The holder or holders of the permissive occupancy at the date of sale will be allowed a valuation of the improvements in his or their favour to include all buildings, machinery, plants, structures, fixtures and fittings etc. together with any furniture (including pianos) incidental to the carrying on of the moving picture theatre or a dancing hall the whole to be offered as a going concern - walk in walk out - and should any other than the holder or holders of the permissive occupancy be the purchasers they must pay in cash on the day of the sale one fourth of the amount of the valuation of the improvements to the outgoing tenants and furnish bank or other sufficient guarantee for the payment of the first year's fee for occupancy of the site and also for the payment to the outgoing tenants on the date of expiry of the existing permissive occupancy the balance of the amount fixed for the valuation of improvements this to be subject to a fair deduction for fair wear and tear possession will not be given until these requirements are satisfied ..."

"That failing the reletting of this site from the date of expiry of this permissive occupancy to the existing tenants or to any other person, persons or company the said Herman Frank Phillips duly observing and performing the several conditions covenants and provisos in these presents contained shall at the expiration of the said term by these presents granted and for a period of one month thereafter be at liberty to remove from off the land permissively occupied all erections, structures and improvements placed by him thereon during the currency of this permissive occupancy the said Herman Frank Phillips covenanting and agreeing in the event of his exercising the right hereby conferred to restore the surface of the land permissively occupied to the like condition in which it was prior to his entering upon the same under these presents".

1. The agreement therefore sets up a scheme whereby Mr Phillips or his successor will have the permissive occupancy of the Land for 21 years ("the Occupancy Period"), that shortly before that period expired the right to a fresh permissive occupancy for a further 21 years would be put up for public auction and if the purchaser were not the then holder of the permissive occupancy (ie, Mr Phillips or his successor) that purchaser would have to purchase all the improvements together with any furniture incidental to the carrying on of the picture theatre or dancing hall on a walk-in walk-out basis. If the site were not "relet" at the expiry of the first 21 years' permissive occupancy then Mr Phillips or his successor had the right, but not the obligation, to remove the improvements from the Land provided the surface was restored to its previous condition.
2. Mr Phillip's rights under this agreement were assigned shortly afterwards to Palais Pictures, which was a company set up by the Phillips Brothers and some business associates. Palais Pictures, as the permissive occupier by assignment, then constructed the Theatre.
3. The Theatre was designed by one Henry White, a prominent theatre architect of the day. Some plans have been located but it is not suggested that these are complete. The documents put in evidence before me are substantially the same as those before the Tribunal in the Possession Proceeding. The principal source is the Herald newspaper of 11 November 1927, which was the day the Theatre opened. This contains considerable editorial material as well as advertisements by various suppliers who contributed to the construction of the Theatre. These are set out in a "Special Section" of the newspaper starting at page 10. One half of the opening page contains an advertisement for A.E. Higgins Pty Ltd ("A.E. Higgins") which commences with the following

"Furnished by Higgins" a real reason for the decorative beauties of the new Palais pictures.

"The interior decoration of furnishing of the new Palais pictures is a monument to the art of Australian designers and furniture craftsmen.

Never has such originality design and excellence of execution been seen. The entire scheme was planned by Messrs A.E. Higgins and L. Sutton-Jones of the A.E. Higgins Department of Design and the whole work was carried out under their direct supervision.

Unlike the Capitol Theatre a wide range of styles and periods is represented including Chinese, antique, French, early English, Roman, Syria and modernists. Thus the foyer of this remarkable theatre is a veritable museum of art and a tribute to the many craftsmen engaged".

1. Thanks are then "duly rendered" to the Phillips brothers, to Mr Sutton-Jones (A.E. Higgins' designer), to the manufacturer of the Wilton carpet which made it "working to cabled instructions", to local manufacturers who collaborated with A.E. Higgins in the production of furnishings, to overseas manufacturers "who executed faithfully and expeditiously all orders in trust to them" and to the whole A.E. Higgins staff. The advertisement also depicts some of the furnishings supplied to the Theatre.
2. It would seem from this that the interior decoration and furnishing of the Theatre was entrusted to A.E. Higgins which oversaw it all.
3. On page 11 of the newspaper, being the second page of this special edition, there is a half page advertisement of Bedford under the banner "An Australian triumph". This invites the reader to "come and inspect the might chandelier and the many artistic pendants and candelabra brackets. The most elaborate lighting scheme and the best craftsmanship ever seen in Australia".
4. Also on page 11, under the heading "Furnishing the interior" is the reportage:

"The furnishing of the theatre is a pageant in itself. It is to the credit of the Melbourne firm of A.E. Higgins Pty Ltd that the enterprise should have been completed in such an original and striking manner. With the exception of a few antique pieces brought from the old countries every item in the furnishing of the Palais pictures was designed by Messrs A.E. Higgins and L. Sutton-Jones in collaboration".

1. This did not, apparently, include the Bedford Lights. On page 13, under the heading "Artistry in metalwork" is the following reportage concerning them:

"Artistry in design and excellence of workmanship mark the electrical lighting and metal ware used throughout the theatre. These have been provided by William Bedford Limited, formerly Lips (Australia) Limited.

Manufactured at their own workshops these fittings prove the fallacy of the statement that to get satisfactory work of this type we must go abroad".

1. The article continues with a description of the various fittings and a description of the method of manufacture, as follows:

"The managing director (Mr W.H. Bedford) and the works manager (Mr M.H. Blamey) stated that in order to secure sharpness and clearness of outline on the designs and to enable them to produce such perfect characters, all the patterns for the fittings were made by their own artists worked up by hand on metal and then weighted up to the necessary weight for castings thus eliminating all wooden patterns".

"When approached by the Palace management the firm had 6 weeks in which to complete this undertaking. It speaks volumes for their organisation and equipment that they were ready in time".

1. It would seem from this evidence that the interior decoration and furniture of the Theatre was designed by the staff of A.E. Higgins who also co-ordinated all of the furnishings. However the Bedford Lights were ordered following an approach made by "the Palace management" to Bedford six weeks before the Theatre opened and were designed and made by Bedford and installed within that six week period.

1. I visited the Theatre with the parties on 4 December 2007 and inspected the Bedford Lights that were still there and the Theatre as a whole. I also visited the warehouse where the removed lights are stored and inspected them. The following matters are apparent from those inspections, from the evidence of Mr Lovell and, as to their removal, from the evidence of Miss Harper.

1. The chandelier was suspended on a chain from the ceiling of the main foyer. It was connected to the chain by a removable shackle bolt. It could be raised and lowered by means of a winch and steel cable located in the roof space. This could be used, not only to lower the chandelier to the ground in order to permit it to be removed and taken away for repair, cleaning or for any other reason but also to alter its distance from the ceiling. The chandelier weighs 15 cwt and is very large. Power was supplied to it by three electric flexes which passed up through the ceiling and were plugged into three power points in the roof space. A length of each flex was in the roof space and had been cut but each still had its plug and the power points into which these plugs were inserted were visible, as were what appeared to be some old sockets nearby.
2. Miss Harper said that when she removed it from the Theatre she did so by disconnecting the three power plugs from their sockets, lowering the chandelier on its safety hook, removing the lights and then packing the various parts of the chandelier for transport. She said that she cut off the flexes because they were long. It is clear that, since they were plugged in, she did not need to do this in order to remove the chandelier. I accept her evidence as to these matters.

1. These were suspended from a wooden backing block screwed into the ceiling. The metal base plate of the light fitting was in turn screwed into it using 3 small screws. Power was supplied by two wires passing through the middle of the wooden backing block which then connected to two similar wires in the light fitting. Each join in the two wires was covered by a small plastic cover secured in place by a small screw. To remove such a fitting it was necessary to remove the three screws connecting it to the base plate then undo the two small screws securing the plastic covers of the two joins in the wire flexes. Mr Lovell said that he would have expected there to have been a more substantial connection to the ceiling but there is no evidence that there was.

1. These were hung from a hook from a complementary brass connecting point which in turn was screwed using three smalls screws to a wooden backing block in the ceiling. The electrical connection was similar to that of the basket lights. The two that were relocated above the auditorium were hung on chains and appear to have had electric plugs.

Brass ornamental newel staircase candelabra lights.

1. These rested by their own weight on the newels on either side at the bottom of each staircase. There was nothing either on the newels or the fittings themselves to indicate that they were attached in any way to the fabric of the Theatre. Power was supplied by a similar arrangement that is, wires joined to wires in the fitting itself. To remove one of them it was only necessary to disconnect the two wires. There was some speculation by Mr Lovell and Mr Galimany as to the possible presence of some form of connection to the building but there is no evidence at all that there was such a connection and Miss Harper denied that there was.

1. These are quite long fittings and were attached to pillars in the foyer. The main point of contact and support was at the top of the fitting where there is a special plug designed to be plugged into a special power point in the wall. This plug and power point arrangement provided not only power but also physical support so that the fitting did not move. The candles were located at the top, but the fitting extended down to the skirting board level where part of the plasterwork appears to have been either cut out or omitted to make a recess to accommodate the bottom of it. There are two screws connecting the lower part or tail of most of these fittings to wooden wall plugs which would have provided some additional support and also stop it from moving. In some fittings it appears that a third screw was used for the same purpose.
2. The presence of a power point at the foot of each fitting leaves open the possibility that it was the original intention to provide some other form of lighting that would have plugged into those power points at these locations. There is no other apparent purpose for them. However that is just a possibility and I make no finding in that regard.
3. To disconnect such a fitting it would have been necessary to remove the screws connecting the tail to the wall plugs and then unhook it from the supporting power point.

1. These plugged into what appears to be identical special power points in the wall to those which powered and supported the Trident lights. Each was powered and supported by its power point and was not otherwise attached to the fabric of the Theatre. To remove a sconce it was simply necessary to take hold of it, lift it up and take it off the wall.

1. I now turn to the objections taken by Counsel on each side to much of the material sought to be relied upon by the other. They were detailed in the form of written objections handed up at the hearing. In accordance with my usual practice I indicated that, rather than take up expensive hearing time, I would rule upon all such objections at the conclusion of the case. I now do so, although in the end I do not believe that much turns on these matters. The significant facts do not appear to be controversial.

1. Mr Galimany was called as an expert witness and the attack on his evidence lay principally as to his qualification. He says in paragraph 1 of both affidavits that he is an historian. He has no such qualification, although he is a qualified and experienced librarian and as such has sourced some of the historical material that was sought to be put in evidence. He is also qualified as an art curator and museum manager. I ruled during the hearing for the reasons then given that Mr Galimany was not an expert in history. His evidence also contained expressions of opinion as to architectural matters and aesthetics but he is neither an architect nor an expert in art.
2. As with Mr Lovell, the affidavits filed served as vehicles to put into evidence statements that he had made. Turning first to his affidavit of 10 July 2007, exhibit MDG-1 is a statement that he prepared with respect to the removal of the Bedford Lights. This contains many general statements, sometimes unsupported by evidence and, in a number of cases, not in accordance with the source material tendered. It must be remembered that this statement was not originally prepared as a statement of evidence and to criticise it as though it was is unfair to the author. Outside his area of expertise Mr Galimany can give evidence of factual matters but not of his opinion. As to those factual matters I must reach my own conclusions from the evidence, bearing in mind of course that, even though I usually sit in a specialist building list, I am not an expert either.
3. I deal with the objections taken to the statement according to the table of submissions handed up during argument:
   • (a) In the third sentence in the second paragraph on page 2, I accept that Mr Galimany has had substantial experience in working in collaboration with other people to produce conservation plans and studies in regard to historic buildings but it is not established that he is either an historian or an expert in art.
   • (b) In paragraph 4 he says that Bedford had been commissioned to design and manufacture many of the theatre's light fittings, door plates, handles and other metalware fittings. In this regard, the Herald article above refers to "...metal ware used throughout the theatre..." as having been designed and made by Bedford. I also note that the Bedford Catalogue contains the boast: "All of the Decorative Lighting Fixtures and Artistic Metalware at the New Palais Theatre were made by us." This evidence supports Mr Galimany's assertion that Bedford made the decorative metalware as well as the Bedford Lights and I accept that it did. There are some similarities between some of the fittings and the Bedford Lights but they do not appear to have been made to a common pattern or theme.
   • (c) As to paragraph 5 it is not only clear from a physical examination of the objects in question but was also acknowledged by Mr Lovell in evidence, that the figurehead referred to is not a Medusa style figurehead. I am also not satisfied that it "linked" the various fittings to make them "recognisably part of the suite of custom designed metalwork of the Palais Theatre". That is a very general statement of unqualified opinion and is not supported either by my observation or the evidence. Indeed, the faces seem somewhat different and in the case of the chandelier, a number of different styles of figure are used. It is also not established that the lights were "custom" designed. They appear in the company's catalogue issued after the Theatre was completed, offering the customer a choice of finishes, and although that does not mean that these designs were not new to the Theatre, there is no evidence that they were. Indeed, the predominant motif referred to, a sunburst head, appears in many articles in Bedford's existing catalogue. The Bedford Lights were made very quickly and according to Mr Lovell some of the finishes were quite rough. He acknowledged that it is likely that they were made up using existing components.
   • (d) In paragraph 6 Mr Galimany describes the method of fixing but he is neither a builder nor an electrician. In any case, the fixing method of each fitting was apparent from other evidence and from my inspection and is described above.
   • (e) In paragraph 7 I am not satisfied, as previously stated, that the "decorative device" is either consistent or appropriately described by the word "Medusa". There is also no evidence that the Bedford Lights were designed especially for the Theatre. They were designed by Bedford and made for the Theatre but there is no evidence that they were to a special design unique to the Theatre.
   • (f) In regard to the annotation to Figure 2 I make a similar comment.
   • (g) In paragraph 8 the Bedford Lights are described as being ornamental. He does not need to be an expert in art to make such an observation. The Bedford Lights are certainly attractive as are the A.E, Higgins light fittings. In the annotation to Figures 8 and 9 I see nothing wrong with his description of the ceiling fixing block. It is quite clear that those fittings were mounted in this way.
   • (h) In paragraph 9 the words "were wired into the building's electrical installation" are imprecise but Mr Galimany is not an electrician and the method of connecting the wires is shown in Figures 13 and 14. I have no difficulty with those words if it is borne in mind what that means namely, two wires in the fitting simply joined to two wires in the Theatre and nothing more substantial than that.
   • (i) In paragraph 10, when he talks about the sconces being "wall mounted" I deal with the connection above. "Plugged in" would be a more accurate description. They were really only held by the power point which also supported them. They were not mounted in any other way.
   • (j) In Figure 15 it is misleading to say that the metal fixing plate indicated in the photograph ".. facilitated the fixing and wiring of one of the two wall mounted sconces in position". It was a power point that also provided support. The sconces were not "wired" in position. They were plugged in.
   • (k) As to paragraph 12 I accept that the fittings were suspended on long chains but the rest of the paragraph is speculative and unqualified opinion. In view of their location it is not clear that these fittings, while decorative, would have provided any additional illumination to the auditorium to any appreciable extent although they would certainly have decorated that area and that was probably their main function.
   • (l) In paragraph 14, objection is taken to the description of the Trident light fittings in the lounge and dress circle foyers as being "wall mounted" but it does not matter what term is used, whether it be "mounted", "fixed", "attached" or something else. What is important is to identify precisely what connection each fitting has to the Theatre. That is stated above. Since Mr Galimany is neither an electrician, nor an expert in art, words such as "ornamental" and "fixed" and "wall mounted" should be understood to be the opinion of a person who is not an expert. What is important about Mr Galimany's reports are his observations and the photographs that he has taken.
   • (m) In Figure 26 I agree that to say that the recesses in the plaster skirting "support the base of the fitting" is wrong. The support for the fitting comes from the special power point at the top with some additional support from the two or in some cases three screws in the tail.
   • (n) In paragraph 18, it is not correct to say that the metal fixing plate "facilitated the fixing and wiring of the wall mounted sconces in position". The sconce simply plugged into the power point and received both power and support from it.
   • (o) It is inaccurate to say, as he does in paragraph 19, that the candelabra lights on the newel posts are "staircase mounted". They were sitting there by their own weight. They were not "wired into the Theatre's electrical installation" except as described above. There was also no hollow brass fixing which secured it to the newel post as suggested in paragraph 19. It is clear that all that was there was a gold painted plastic tube intended to conceal the wires beneath them. As such, the notation to Figure 33 is incorrect.
   • (p) In paragraph 33 objection is taken to Mr Galimany's description as to how the chandelier was raised and lowered. He is not a builder or engineer but he can say what he observed. My findings as to these matters are above.
4. I turn now to exhibit MDG-5 to Mr Galimany's affidavit of 16 November 2007, being his statement dated November 2007.
   • (a) As to the objections taken to page 2 I find that he is not an historian and I do not find on the evidence that he has expertise in the history and built form of Melbourne. He has worked with others in this area but he has no formal qualifications or other proven expertise.
   • (b) In paragraph 2 it does not appear that he has any way of knowing directly when the various light fittings were removed from the Theatre but this is not in issue.
   • (c) Objection is taken to paragraph 5 but there is no doubt that the Bedford Lights were manufactured for the Theatre by Bedford in 1927.
   • (d) As to the following paragraphs, insofar as what Mr Galimany says is opinion I find that he is not qualified to express such an opinion as an expert and I accept only his evidence as to the matters of fact and source material that he has identified. In the absence of an historian being called for either side, and there was none, I will have to take the material at face value. The references to the architect, Mr White, although historically interesting, are not of any relevance because there is no evidence that he had anything to do with the Bedford Lights or even the design of the interior decoration of the Theatre. References to Henry White's "interior design schemes" are not relevant nor are the references to overseas theatres.
   • (e) I understand the objection to Figure 1, which is irrelevant, but Figures 2 and 3 are of some assistance in understanding the interior lighting of the auditorium, which was concealed behind various architectural elements. Only 2 Bedford Lights are in the rear of the auditorium and according to Mr Lovell they are likely to have placed there much later.
   • (f) As to the objections to paragraphs 15 to 19, the first four paragraphs contain quotations from the other material and the source material that is in evidence and which I have read. The commentary is opinion of a nature that Mr Galimany is not qualified to give. In particular, his suggestion in paragraph 19 that the plasterwork finish was reliant on the direct illumination provided by the Bedford Lights seems extraordinary considering that most of this plasterwork was elsewhere in the Theatre and only a very small part of it was illuminated by the Bedford Lights.
   • (g) Paragraphs 20 and 21 are also unqualified opinion or hearsay.
   • (h) The quotations in paragraphs 22, 23 and 24 are to be found in the Herald article. The commentary is outside Mr Galimany's expertise. The catalogue and other source documents are certainly relevant and can be relied upon.
   • (i) The comments as to electrical matters are outside his expertise and, in regard to the earthing of fittings, probably wrong, according to the other evidence. His comment in paragraph 32 that the "sleeve" concealing the wiring from below the newel candelabra "can be clearly seen" in the image of the same fitting in the Bedford catalogue is conjecture. I could not see it and, since the evidence establishes that this sleeve was put there by Miss Harper, it could not be in the catalogue.

1. The affidavit of David Aiton Heale was opened only as to paragraphs 1 to 23 (both inclusive). There was no cross examination of Mr Heale but it was conceded that the Conservation Management Plan referred to paragraph 14 is not to be considered to be in evidence except insofar as it may already have been. I am not assisted by paragraph 16 nor by the references throughout the affidavit to the lights being "fixed" or "fixtures". That is something that I have to decide.

1. Turning now to the evidence of Mr Lovell, he holds a Bachelor of Building degree from the University of Melbourne. He has had extensive experience in advising on, and carrying out, conservation and restoration of notable historic buildings throughout Australia and in the preparation of conservation and management plans. He has no formal training as an historian and he is not an artist or art historian but he has had considerable experience in examining historic buildings and observing their condition and advising what needs to be done to conserve them. A basic problem with Mr Lovell's statements is that it is often not clear when he is offering his own opinion and when he is simply adopting what Mr Galimany has observed or concluded.
2. There are two affidavits filed, one sworn 11 July 2007 and the other 16 November 2007. The first affidavit exhibits a statement dated July 2007 (exhibit PHL-2) prepared by Mr Lovell and his staff. A number of objections have been made to this document which I will now deal with.
   • (a) In paragraph 4, he refers to lights as "fixed" and "mounted" without giving any details as to what means by these terms. I treat these as used loosely. Details of the actual connection of the Bedford Lights are given above.
   • (b) He refers to Mr Galimany's first statement of evidence "and the documents referred to therein". I do not treat that as being an attempt to introduce all of that material as part of his own evidence.
   • (c) In paragraph 6 he refers to the Bedford Lights as having been all designed and manufactured by Bedford in 1927 for the Palais Theatre. The footnote to this comment is the Herald article "An Australian Triumph" and it supports what he says, although as I have said, there is no evidence that the designs were specific to the Theatre as distinct from designs Bedford already had.
   • (d) In paragraph 7 he refers again to Mr Galimany's statement and suggests that the lights "exhibited a consistent design theme throughout, incorporating a 'Medusa' style figurehead device as a decorative element". This is a quotation from Mr Galimany and is unqualified comment. In his oral evidence he agreed that the fixture he was referring to was not a Medusa type. It is clear from the examination of the various figures on the light fittings that there is not one common theme but really a number of different designs and figures although with some commonality. The conclusion: "...making them recognisably part of the suite of fittings of the Palais Theatre" is not justifiable on the evidence.
   • (e) Objection was taken to paragraph 8 but I see it is part of the narrative and unobjectionable.
   • (f) Although paragraph 11 is hearsay I can receive hearsay for whatever probative value it might have and it is not disputed that a number of the Bedford Lights have been removed from the Theatre.
   • (g) Paragraph 12 refers to Mr Galimany's statement. I do not regard it as incorporating Mr Galimany's statement into Mr Lovell's evidence.
   • (h) Paragraph 13 simply draws on Mr Galimany's statement and talks in general terms about the lights being "wired into the Palais Theatre's electrical installation and secured by screws, fixture wooden ceiling fixing to blocks or to metal fixing plates set into the wall". These are very general statements but the detail of these matters is set out above. As to the chandelier, he says that "... the means of its connection to the Palais Theatre's electrical installation is not known". Since the means of connection would have been quite obvious to anybody standing next to the winch, to which he refers in the same sentence, it would seem that when he wrote that sentence he had not been into that part of the Theatre.
   • (i) Objection is taken to paragraph 14 but one might well hold the view that the chandelier was "...the centrepiece of the suite of light fittings designed and manufactured by William Bedford Limited...". That is a value judgment made by Mr Lovell, whatever the term "a suite" of lights means. Others might take a different view. It is apparent that much of the decoration on the chandelier does not match the other fittings. The figure of the cherub appears on no other light fitting. However it is also clear that the Bedford Lights were supplied at the same time to the same order and were manufactured and designed by Bedford.
   • (j) Mr Lovell says in paragraph 15 that the main chandelier was "...clearly an essential element of the interior design concept, overall aesthetic appeal and lighting scheme designed for the Palais Theatre". There is no footnote to this statement and it is unqualified opinion. It is apparent from the evidence that the Bedford Lights did not form any part of the interior design of the Theatre and were only installed just before the Theatre opened. The auditorium and most of the Theatre, including the foyer, is lit by concealed lights and other lights designed by A.E.Higgins. The Bedford Lights were in the areas outside the auditorium although two of them appear to have been brought into the area at the rear of the stalls at a later date. Such general statements without any justification are not helpful.
   • (k) In paragraph 16 he refers to the Conservation Management Plan of June 2006 prepared by his office in which, he says, the "suite of fittings" were identified as being of "primary heritage significance for the Palais Theatre". In view of his experience he is qualified to express an opinion as to the desirability of reinstalling the Bedford Lights into the Theatre as part of its restoration. As to whether they are of primary heritage significance, obviously, as the original lights they would have heritage significance according to ordinary parlance. but whether or not they are fixtures is another question. His comments in paragraphs 17 to 20 appear to draw heavily on the management plan which appears in turn to have been largely prepared by Mr Galimany.
   • (l) In paragraphs 21 to 25 he deals with conservation issues that are not material to what I have to decide.
   • (m) In paragraph 26 he suggests that the Bedford Lights "...have been demonstrated to be an integral component of the original design and decorative scheme of the Palais Theatre...". He offers no justification or supporting footnote for this statement nor is it in accordance with the evidence. Having been ordered only six weeks before the Theatre opened and long after it was designed it is impossible to say that the Bedford Lights were an integral component of the original design of the Theatre. Similarly, the decorative scheme of the Theatre was the work of A.E. Higgins and, as Mr Lovell acknowledged in evidence, it must have been virtually completed before the Bedford Lights arrived. The lights A.E. Higgins designed are very different in style from the Bedford Lights, which were designed by the staff at Bedford. Had Mr Lovell simply said that, as the original decorative brass lights in the Theatre they had heritage significance, that would certainly be right.
   • (n) Certainly the Bedford Lights provided illumination to the foyer, although they were not the sole or even the main source of light. Also, being attractive they certainly added to the attractiveness of the foyer area. Otherwise paragraph 27 is unqualified opinion.
3. Mr Lovell's second affidavit exhibits an additional report dated November 2007. .
   • (a) In paragraph 5 he refers to Mr Galimany's reports. I do not regard those as having been incorporated into his evidence by this paragraph. I also do not accept that Mr Galimany is qualified as an historian.
   • (b) In paragraph 6, he sets out the statement of significance to be found on the Heritage Victoria website and in paragraph 7 he sets out a proposed revised statement. It would seem that this is not simply his own work. Whereas the existing statement of significance is one paragraph his suggested revision is nine paragraphs and appears to be taken from the conservation management plan. None of this assists me.
   • (c) Further references to the conservation management plan are found in paragraph 8. Again, it does not appear that this a view that he has formed independently. In paragraphs 8 and 9 he says that the survival of the Bedford Lights contributes to "the intactness" of the Theatre. Since they are the original lights that must be true.
   • (d) In paragraphs 9, 11, 12 and 13, Mr Lovell makes the valid point that the fact that the Bedford Lights are not specifically mentioned in the Victorian Heritage register does not mean that they are not significant. I accept that proposition.
   • (e) In paragraph 10 he points out that the survival of the original fittings of the Theatre is extremely rare in the context of other surviving historic theatres and he gives other examples. That is certainly within his area of experience and I accept that evidence.
   • (f) In paragraph 13, Mr Lovell says that objects treated as "integral to the building fabric" are "therefore covered within the identification of the places Heritage place". Although that is no doubt his opinion its correctness as a matter of law might depend upon what is meant by "integral to the building fabric".
   • (g) Paragraph 14 refers to a letter written by Heritage Victoria to the Respondents' solicitors asserting that the Bedford Lights are fixtures. That is a view they expressed but it is obviously something that I have to determine myself.
   • (h) In paragraph 15 he asserts that the Bedford Lights were "an integral part of the building fabric". Again that is something that I have to determine.
   • (i) In paragraph 16 he suggests that the Bedford Lights "were integral to the delivery of the often grand or exotic appearance of the foyer". The lights were certainly highly decorative and attractive although in a different style to the rest of the interior décor. They must necessarily have contributed considerably to the attractiveness of the foyer. Otherwise this is a personal unqualified opinion and not relevant.
   • (j) In paragraph 17 he makes the valid point that lighting has a practical function of illumination. The extent to which the relevant areas were dependant upon the Bedford Lights for illumination is unclear from the evidence. Certainly they were one light source but there were other light sources as well.

1. This affidavit related to the issues concerning Tymbook having a further term and also whether it ceased to own the Theatre immediately before the Crown Lease was granted. These matters have already been determined between the parties and I have not found this affidavit to be of any use in regard to the present dispute.

1. Objection is taken that the matters canvassed in Miss Harper's first affidavit, sworn 3 August 2006, and her second affidavit, sworn 1 September 2006, on the ground that they have already been considered and determined in the Possession Proceedings and the Appeal. That is so and any determinations that have already been made are binding and cannot be revisited. Subject to that, there is much evidentiary material in these affidavits bearing upon the point I have to decide and insofar as any of the material can assist me to make further determinations I should receive it into evidence.
2. As to the third affidavit of Miss Harper sworn 17 July 2007, objection is taken to paragraphs 7 and 8 which simply recite the conclusions reached by Mr Justice Harper and make somewhat emotive statements. Neither paragraph is of any assistance to me. Objection is also taken to paragraphs 16 to 18 which recite historical matters and matters of argument that are again are of no assistance.
3. Paragraphs 22 to 42 deal with the eviction of Tymbook from the Theatre. Some of the material is argumentative, which I will ignore, but there is much that relates to the dispute between the parties. None of it however is of any great assistance to me in deciding whether the Bedford Lights are fixtures or not.
4. As to the fourth affidavit of Miss Harper sworn 26 November 2007, objection is taken to paragraph 8, the contents of which are proven in the other material. I see no reason to exclude this paragraph. Paragraphs 10 to 12 are largely comment and matters for submission. They are not probative of any relevant fact.
5. As to the objections to paragraphs 23 to 25 I agree that they do not bear directly on the questions I have to answer but they are nonetheless background. Paragraph 27 contains some comment but the factual matters are relevant. Paragraph 28 is the deponent's personal opinion and not relevant. Paragraph 29 deals with lights in the Capitol Theatre and I do not think it is of any relevance. Paragraph 30 is hearsay and although I can rely upon hearsay there is direct evidence that the Bedford Lights were made in great haste. Whether they were made on a restricted budget is not something Miss Harper can swear to. The same comment might be made about paragraph 31. In any case, it is not to the point whether the budget for the making of the Bedford Lights was restricted although considering the cost of the Theatre it seems unlikely that they would have been.
6. Paragraph 32 is relevant insofar as it challenges the Crown's contention that the Bedford Lights are unique and have a special character linked with the Theatre and its interior décor. Whether that contention itself is relevant is another matter.
7. Paragraph 33 reinforces some of Mr Lovell's evidence. Insofar as it deals with the other items, I do not think it assists me.
8. Paragraphs 35 to 42 are not relevant, nor are paragraphs 46 to 52 which in turn are argumentative material, some of which was put in submissions.
9. Exhibits CH-15, 16, 17 and 18 are not relevant. These include a demand from Heritage Victoria to replace the Bedford Lights but it is conceded that if they are not fixtures they do not fall within the designation under the Act and in that event the demand by Heritage Victoria would be misconceived.

1. That is the evidentiary material. I now turn to the applicable legal principles. The parties referred me to numerous authorities and passages in text books, which I have read. The principles are well established and as the authorities show, the difficulty is in their application to a particular case.
2. In Halsbury 4th Edition Vol.27 Para 143, the traditional approach is stated as follows:

"Whether a chattel has been affixed to the premises so as to become a fixture is a question of fact which principally depends first on the mode and extent of the annexation, and especially on whether the chattel can be easily removed without injury to itself or the premises; and secondly on the object and purpose of the annexation, that is whether it was for the permanent and substantial improvement of the premises or merely for a temporary purpose or for the more complete enjoyment and use of the chattel as a chattel. The mode of annexation is therefore only one of the circumstances to be considered, and may not be the most important consideration.

A chattel which is only attached to the premises by its own weight will not in general be regarded as a fixture, unless circumstances show that it was intended to become part of the premises, and the onus of proving that there was such an intention rests on the party asserting that the chattel has become a fixture. On the other hand, if a chattel is to some extent attached to the premises, it will be considered to be a fixture unless the circumstances show that it was intended all along to remain a chattel, and in such a case the onus will be on the party asserting that it is still a chattel."

1. These principles were applied in Australian Provincial Assurance Limited v Coroneo [1938] NSWStRp 35; (1938) 38 SR (NSW) 700, where the New South Wales Court of Appeal had to decide whether seats and certain other fittings in a theatre were fixtures. In an often cited passage Jordan CJ said (at p.712 - omitting citations):

"If a chattel is actually fixed to land to any extent by any means other than its own weight, then prima facie it is a fixture; and the burden of proof is upon anyone who asserts that it is not: if it is not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and the burden of proof is on anyone who asserts that it is........ The test of whether a chattel which has been, to some extent, fixed to land as a fixture is whether it has been fixed with the intention that it shall remain in position permanently or for an indefinite or substantial period ....... or whether it has been fixed with the intent that it shall remain in position only for some temporary purpose........ In the former case, it is a fixture, whether it has been fixed for the better enjoyment of the land or building, or fixed merely to steady the thing itself, for the better use or enjoyment of the thing fixed ........ If it is proved to have been fixed merely for a temporary purpose it is not a fixture .......... The intention of the person fixing it must be gathered from the purpose for which, and the time during which, user in a fixed position is contemplated .......... If a thing has been securely fixed and in particular it has been so fixed that it cannot be detached without substantial injury to the thing itself or to that to which it is attached, this supplies strong, but not necessarily conclusive, evidence that a permanent fixing was intended.... On the other hand, the fact that the fixing was very slight helps support an inference that the fixing was not intended to be permanent."

1. In that case, his Honour found that a switchboard that was screwed to the wall and a generating machine that was fastened to a bed of concrete, were fixed in each case with the evident intention that they should remain in place indefinitely. On the other hand it was open to the Jury to find that the theatre seats, which were fixed or detached and moved about as required, were not fixtures.
2. In the course of his judgment in Coroneo, his Honour referred to the case of _Holland v. Hodgso_n (1872) LR 7 CP 328. In a well-known passage from the judgment of Blackburn J in that case (at p.334-335) his Lordship said:

"There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz., the degree of annexation and the object of the annexation. When the article in question is no further attached to the land than by its own weight, it is generally to be considered a mere chattel: see Wiltshear v. Cottrell21 E. & B., 674; [1853] EngR 215; 22 L.J.Q.B., 177, and the cases there cited. But even in such a case, if the intention is apparent to make the articles part of the land, they do become part of the land."

1. In Commissioner of State Revenue v. Uniqema Pty Ltd [2004] VSCA 82; (2004) 9 VR 523, the Court of Appeal Ormiston J., in delivering the judgment of the court, said (at p. 544):

""...notwithstanding that Jordan CJ laid down what appeared to be a succinct and clear test in Australian Provincial Assurance Co. v. Coroneo, later decisions have tended to suggest that there is a broader test, not confined to degree and object, but which requires consideration of all the relevant circumstances, perhaps a loosely convenient tag though one which permits constant disputation in an area of property law which has never attained the degree of certainty which might have been expected where title to land is in issue."

1. The "later decisions" to which his Honour refers are footnoted as including the New South Wales Court of Appeal decision in NH Dunn Pty Ltd v. LM Ericsson Pty Ltd (1980) ANZ Conv R 300, 2 BPR 9241 and National Dairies (WA) Ltd v. Commissioner of State Revenue [2001] WASCA 112; [2001] 24 WAR 70.
2. In Dunn, it was held that a PABX telephone system rented by a tenant from a third party and fixed to the land and cabled throughout several rooms was not a fixture. Mahoney JA said, after referring to the above passage by Jordan CJ (at p. 303):

"I would with respect find difficulty in accepting that the matter can be tested simply by reference to whether the annexation to the realty is intended to be temporary or otherwise."

His Honour referred to a number of cases where chattels had been annexed for purposes that were not temporary and had yet been found not to be fixtures. He said (on p.304) that although the actual subjective intention of the person affixing the chattel was not irrelevant the question had to be determined by objective facts. In that case the tenant had a ten year lease with an option for renewal and it was contemplated that the system would remain in place for that period of time. He found that the degree of annexation was small, being mainly to steady the parts, the purpose was to afford a means of communication to the people in the office rather than for the better enjoyment of the land. He also had regard to the terms of the rental agreement of the equipment.

1. Another example as to the application of this "broader test" is the case of Palumberi v Palumberi [1986] NSW Conv R 55,673, where the Defendant had renovated a flat belonging to his parents and in the course of doing so, installed, inter alia, a new stove and carpet. The flat was later given to him and to his brother and he then sold his half interest to his brother. Kearney J held that the new stove and carpet were fixtures that passed with the sale. After considering the authorities, his Honour concluded as to the relevant principles (at p. 56,672):

"It would seem from perusal of these and other authorities in the field that there has been a perceptible decline in the comparative importance of the degree or mode of annexation, with a tendency to a greater emphasis being placed upon the purpose or object of annexation, or, putting it another way, the intention with which the item is placed upon land. This shift has involved a greater reliance upon the individual surrounding circumstances of the case in question as distinct from any attempt to seek to apply some simple rule or some automatic solution.

Bearing in mind the principles to be derived from the above references, and seeking to apply them to the facts of the present case, it might be noted that, whilst some guidance may be obtained from other decisions in similar circumstances or concerning similar items, no standard solution is to be derived from such cases, which upon ultimate analysis, are found to turn on their individual facts.

In the present instance I refer first to the stove and carpeting. As to these items the evidence shows that the defendant, without reference to the owners of the property, simply removed and discarded these items and then replaced them with new items. At that stage the defendant anticipated that he would become an owner of the property, and it would seem that he carried out this work of replacement upon the basis that he would, in due course, be deriving the benefit of them as owner of the property and, doubtless, anticipated further that he would continue indefinitely to enjoy such benefit.

I do not consider that I should impute to the defendant the intention of committing a tortious, and probably also criminal act in relation to the property of the owners of the premises without making good the loss and damage so inflicted by replacing the items removed and discarded by him. I think that the proper inference to draw from the circumstances in which the stove and carpet were installed in the premises, is that the defendant intended them to form part of the premises; and this intention is, of course, supported by his anticipated entitlement to indefinite enjoyment of the benefit of such items in his character as prospective owner of the premises."

1. In National Dairies, interconnected items of plant and equipment used as a milk processing plant in a dairying business were held to be fixtures. Malcolm CJ said (at p.74):

"...it is not a matter of subjective intention but a matter of ascertaining the intention objectively, having regard to all of the circumstances."

1. The evidence as to the degree of annexation in this case concerns the Bedford Lights as they are now or, in the case of those that have been removed, as they were at the time of their recent removal. Apart from the evidence that at least some part of the Theatre has been rewired, there is no evidence that there has been any significant change in the nature or degree of annexation since the time the Bedford Lights were first installed in the Theatre, except for the two fittings that were moved into the auditorium at some unknown time. I therefore proceed on the basis that there has been no such change and this is the way they were originally installed.
2. In this regard:
   • (a) The chandelier was hung by its own weight from a shackle bolt at the end of a chain and was plugged into the power source by means of three removable power plugs.
   • (b) The newel lights sat on the newel sections of the balustrades and were unconnected to the Theatre except for the two electrical wires which were connected to the two wires in the fitting.
   • (c) The sconces plugged into power points in the walls and were not otherwise connected to the Theatre.
   • (d) The basket and bucket lights were each held to wooden mounts by three small screws and two electrical wires which were connected to the two wires in the fitting. The two in the auditorium were hung from chains and plugged in.
   • (e) The Trident lights were plugged into similar mounting power points to those which held the sconces and the tail of each fitting was also screwed to wall plugs by two or, in some case, three screws.
3. If I were to take the traditional Coroneo approach, I should find that the Crown bears the onus of proof in regard to the chandelier, the sconces and the newel lights and Tymbook bears it in regard to the others, albeit that the degree of annexation in each case is slight. However to be consistent with what Ormiston J said in Uniqema I think I should look at all the circumstances which include the degree of annexation. In either case the result is much the same. Even the Coroneo approach does not take the matter much further because in each case it is only the civil burden. If I am satisfied on the balance of probabilities that, judged objectively, a particular fitting was or was not intended to be a fixture, then that will be enough whichever approach I adopt. It is only if the evidence in that regard is evenly balanced that a party bearing the onus of proof will fail on that account. The key to any case seems to me to be the object or purpose of annexation and that must be judged from the objective facts.

1. In Monti v. Barnes [1901] 1 QB 205 a mortgagor of a house removed from the house a number of ordinary fixed grates and substituted for them dog grates " of considerable weight" which were not affixed in any way to the freehold. The question arose whether they were fixtures or chattels. After referring to the above passage from Holland v. Hodgson, A.L. Smith MR said (at p. 207):

"Applying these principles to the present case, we have here the fact, first, that the articles in question are of considerable weight, and, as regards the intention with which the mortgagor placed the dog grates in the house, it is obvious that he could not have intended that the house should be without grates; and I have no doubt that the dog grates were put in to fill the place of the old fixed grates, which he took out, and to pass with the inheritance. The question which has to be considered in such a case is whether, having regard to the character of the article and the circumstances of the particular case, the article in question was intended to be annexed to the inheritance or to continue a mere chattel, and not to become part of the freehold. The learned Judge has held that in the circumstances of this case these dog grates were substituted for the old fixed grates with the former intention, and not only am I unable to say that he was wrong in that conclusion, but I agree with him."

1. On the same page of the report, Collins L.J. said:

"The question whether the things in dispute were fixtures is a mixed question of law and fact, depending upon the intention with which they must be taken to have been placed in the house; upon whether they were put there as a permanent improvement of the inheritance, or merely for a temporary purpose, to be removed whenever the person who placed them there thought fit."

1. In Leigh v. Taylor [1902] UKHL 1; (1902) A.C. 157, the House of Lords had to consider the question whether very valuable tapestries, which had been fixed by a tenant for life to boards nailed to the walls of a house but were removable without significant damage to the house, had remained chattels. Lord Halsbury L.C., said (at p. 158):

"One principle, I think, has been established from the earliest period of the law down to the present time, namely, that if something has been made part of the house it must necessarily go to the heir, because the house goes to the heir and it is part of the house. That seems logical enough. Another principle appears to be equally clear, namely, that where it is something which, although it may be attached in some form or other ..... to the walls of the house, yet, having regard to the nature of the thing itself, and the purpose of its being placed there, is not intended to form part of the realty, but is only a mode of enjoyment of the thing while the person is temporarily there, and is there for the purpose of his or her enjoyment, then it is removable, and goes to the executor."

1. His Lordship considered it significant that they were fixed by a tenant for life and not the owner of the freehold. He said (at p.159):

"I put the case: suppose this had been a tenant from year to year, and she put up these things, is it conceivable that a person would for the purpose of a tenancy from year to year put up these things exactly in this way if thereby they made a present of five thousand pounds to the landlord?"

1. He suggested that the question was the same, whether the dispute was between landlord and tenant or heir and remainderman, and pointed out that the woman who had affixed the tapestries "stood as a tenant for life to the remainderman." He concluded (on p.161):

"Therefore I come to the conclusion that this thing, put up for ornamentation and for the enjoyment of the person while enjoying the house, is not under such circumstances as these part of the house. That is the problem that one has to solve in each of these cases. If it is not part of the house, it falls under the rule now laid down for some centuries, that it is a sort of ornamental fixture, and can be removed by whoever has the right to the chattel - whose it was when it was originally put up."

1. In the same case, Lord McNaughten said (at p.162):

"The question still is, as it always was, has the thing in controversy become parcel of the freehold? To determine that question you must have regard to all the circumstances of the particular case - to the taste and fashion of the day as well as to the condition in regard to the freehold of the person who is supposed to have made that which was once a mere chattel part of the realty. The mode of annexation is only one of the circumstances of the case, and not always the most important - and its relative importance is not what it was in ruder or simpler times."

1. Mr Murdoch argued that Tymbook owned the Theatre until 31 March 2006 and so, if the Bedford Lights were affixed to the Theatre they were affixed to the Theatre as decorative chattels and remained the property of Tymbook. I do not accept that submission.
2. Much evidence has been led as to an assumption between the parties that the Theatre belonged at all material times to Tymbook and that the Crown only owned the Land. It is common ground that the Crown charged only a ground rent and that Tymbook was not required to insure the building in the name of the Crown. The correspondence would suggest that everyone assumed until very recently that the Theatre belonged to Tymbook. However it was not argued, sensibly, that the Theatre itself was not a fixture. If it were not a fixture then the Bedford Lights could not themselves have been fixtures. A distinction must be drawn here between a contractual right to remove, which affects the parties to the contract, and property rights which affect third parties.
3. Where an article comes to be on the land as a result of some agreement between the owner of the land and the owner of the chattel, the terms of that agreement, although binding the parties themselves, cannot conclusively determine whether or not the article has become a fixture vis á vis other people (Elitestone v Morris & anor [1997] 1 W.L.R.687; Melluish v B.M.I. (No 3) Ltd [1996] A.C. 454). In Melluish Lord Brown-Wilkinson said (at p. 473):

"The terms expressly or implicitly agreed upon between the fixer of the chattel and the owner of the land cannot affect the determination of the question whether, in law, the chattel has become a fixture and therefore in law belongs to the owner of the soil:... the terms of such agreement will regulate the contractual rights to sever the chattel from the land as between the parties to the contract and, where an equitable right is conferred by the contract, as against certain third parties. But such agreement cannot prevent the chattel, once fixed, becoming in law part of the land and as such owned by the owner of the land so long as it remains fixed."

1. Similarly, in Neylon v Dickens [1979] 2 NZLR 714 a house erected on permanent foundations and connected to drainage sewerage and power together with substantial plant and equipment was held to be a chattel because it was erected by a company on another person's land pursuant to an informal arrangement with the landowner, for use by the company in its business for a temporary and, possibly, short period. In that case the learned judge said that the actual intention of the parties as to whether an article becomes a fixture or remains a chattel binds them inter se, but as to strangers to their agreement, intention is to be determined objectively by reference to the circumstances of the case.
2. The reason for this is obvious. Whether or not the article has become a fixture affects not only the people originally involved but all persons thereafter, whether successors in title, landlords and tenants, mortgagors and mortgagees etc. who may have no means of knowing what was agreed between the original parties. Hence, although the ultimate question is always as to the intention of the person who placed or attached the article on the land, that intention must be ascertained by reference to objective facts.
3. In this case the question of ownership of the Theatre has already been considered. In the appeal proceedings the learned Judge said (at para. 49):

"Here [Tymbook] submits, not only that Palais Pictures Pty Ltd owned the theatre from the beginning of its existence, but also that..............it continued its ownership until 1985, when its interest was acquired by Tymbook. Subject to that change, the ownership of the theatre remained uninterrupted (or interrupted only momentarily, in 1956) by any alteration in the position effected by the 1955 Act. In general, I agree. In my opinion however.... the interest in the theatre of those operating it from time to time is defined and described in the permissive occupancy agreements and, subsequently, the crown lease."

1. From his earlier comments to the fact that the Theatre was a substantial building firmly affixed to its foundations in the leasehold and that Tymbook did not own the Land upon which it had been constructed, it is clear I think that his Honour is not suggesting in this passage that the Theatre is not a fixture. What he is saying is that the rights of Palais Pictures and then Tymbook to the Theatre are to be found, first in the Occupancy Agreement and then in the Crown Lease; but he does suggest that those rights amounted to ownership of the Theatre in that limited sense (see also para. 51). Of course his Honour was dealing with a claim for possession of the Land and said that ownership of the Theatre was "not to the point" (para 54) but his view is clearly stated and so I should nonetheless accept as determined between the parties that the Occupancy Agreement did confer upon Palais Pictures property rights in the fabric of the Theatre but only commensurate with its terms. This is not to say that the Theatre itself was not a fixture.
2. The Theatre is a very large building erected on Crown Land. It could not by its nature have been enjoyed as a chattel. There was a contractual right to remove it but it could not have been removed except by demolition. The degree of annexation is a circumstance strongly in favour of the conclusion that it is a fixture such that it would be difficult for anyone asserting that it was a chattel to establish that. No such assertion was made. It is clearly a fixture and, as his Honour found, the rights Palais Pictures had to it arose from the Occupancy Agreement.
3. Under the terms of the Occupancy Agreement, depending upon the circumstances prevailing towards and at the end of the Occupancy Period, Palais Pictures had the right to one of the following:
   • (b) a further permissive occupancy of 21 years;
   • (c) payment for the improvements and all furnishings and equipment;
   • (d) removal of all the improvements, provided that it reinstated the Land; or
   • (e) since there was no requirement to remove the improvements, simply move out, taking with it anything that it could lawfully take.
4. It is important to note that Palais Pictures had no right of partial removal of the improvements conferred by the Occupancy Agreement. By clause 19 it covenanted and agreed that if it exercised the right to remove the improvements it would restore the surface of the Land to the condition it was in before the Occupancy Agreement was entered into.
5. Palais Pictures also had no right to remove any of the improvements during the Occupancy Period. Of course, any that were not fixtures could be removed because they would belong to it; but any that were fixtures, being part of the Land, would not be removable without the Crown's consent. It would be impossible to imply a term into the Occupancy Agreement permitting such a removal because it is by no means clear what such a term would have provided nor is it clear that the Crown would have agreed to it at the time. Indeed, any such term would have needed to have been qualified so as to prevent Palais Pictures from avoiding the requirement in clause 19 by picking the eyes out of the improvements before the expiry of the Occupancy Period and leaving the Crown with the burden of what could not profitably be removed.

1. Another issue that has already been determined between the parties is that, because Palais Pictures was not a tenant, s.48 of the Landlord and Tenant Act 1915 did not apply. This is highly significant. If the section had applied, then the Theatre and even the Bedford Lights themselves would, it seems, not have become fixtures at least during the period of the tenancy (see Vopak Terminals v Commissioner of State Revenue [2004] VSCA 10; (2004) 12 VR 351 at p.369). In the Possession Proceedings the Learned Deputy President held that the section did not apply because, although the Theatre was erected after 24 September 1907, it was not erected during a period when Palais Pictures was "holding lands by virtue of any lease". In the Appeal Proceedings his Honour did not find it necessary to decide whether this was correct and so that determination remains undisturbed. In any case, I think, with respect, that the learned Deputy President was right. All that Palais Pictures had at the time the Theatre was constructed was a permissive occupancy. Despite the use of such words as "term" and "re-let" it is clear that the document was not intended to be a lease. Indeed, the Land had been permanently reserved for public use and so could not have been the subject of a Crown lease.
2. It is clear therefore that the sole rights Palais Pictures had at the time the Theatre was constructed were those conferred by the Occupancy Agreement and it is in that context that I must consider what the object of annexation of the Bedford Lights was.

1. The first matter is obviously the degree of annexation. This has already been considered. In regard to the chandelier and the sconces, there was none. Plugging an electrical fitting into a power point does not I think amount to any annexation to the freehold, nor does hanging a chandelier from a chain from which it can be removed by undoing a shackle bolt. The newell lights were only connected by two wires which connected to two wires in the fitting. The others were connected by two or three screws and derived power as described above. The degree of annexation was very small and all of them could be removed without any damage to the Theatre.

1. Electrical connection of the article is not conclusive, even if it amounts to direct wiring into the circuitry of the building (see Geelong City Building Pty Ltd v Bennett [1928] VicLawRp 33; [1928] VLR 214; Abercrombie v Wollington (1956) 73 WN 336). It is just one of the circumstances to be taken into account.

1. A similar although distinct point is the choice by whoever installed the Bedford Lights of a supporting power point for the sconces and the trident lights of a nature that would permit the fittings to be quickly and easily removed. Mr Lovell agreed that it was an unusual system and would permit ready removability.

Installed for the better enjoyment of the Theatre

1. A factor considered important in a number of cases is whether the chattel is installed for its better enjoyment as a chattel or for the better enjoyment of the building in which it is installed. In this case the position in that regard is not clear. The apparent purpose of installing the Bedford Lights was to both decorate and illuminate the foyer of the Theatre and illuminate the toilets. In the toilets they might have been the main source of illumination but outside those areas their contribution to illumination appears to have been minor relative to the other light sources. Their function there appears to have been mainly decorative. Mr Murdoch argued that I should therefore find that they were installed to be enjoyed as decorative chattels. Mr Garde argued equally forcefully that as lights, having the function of illumination and creating an attractive interior, they were installed for the better use of the Theatre. Neither position is wholly right. They were installed for a dual purpose although the main purpose of having such attractive lights as distinct from something more functional appears to have been to dress up the public areas.

1. The length and security of tenure of the affixer of the chattel is a relevant factor (Leigh v. Taylor) and in some cases may be very significant (Neylon v Dickens; Ceedive Pty Ltd v. May [2005] NSWSC 222) but the fact that the owner of the chattel had only a limited interest in the premises is not, of course, conclusive. It is only one of the facts to be considered (see also Reid v Smith [1905] HCA 54; (1905) 3 CLR 656).
2. In the present case, Palais Pictures did not own the Land and had only the limited rights referred to. Therefore anything affixed to the Land so as to become part of it would pass immediately to the Crown. Palais Pictures would have the right to use them for the Occupancy Period but could be certain of only 21 years. In such a situation it seems unlikely that the mere permissive occupant would intend to permanently benefit the owner of the Land by conferring immediate ownership of valuable lights that could otherwise have been easily removed.

1. It was suggested throughout the Crown's evidence that the Bedford Lights were somehow "integral" to the Theatre and that word was used many times. It is unclear how this is put. Generally, if something is integral to a building it is not a fixture but part of the building (see Halsbury 4th Ed. Vol 27 para 149; Boswell v Crucible Steel Co [1925] 1KB 119). The description applies mostly aptly to a door, window or roof. The Bedford Lights do not have the character of a building component that is worked into the fabric of a building. Rather they were brought into the Theatre as chattels and the question is whether they remained chattels or became fixtures. That was the way the case was argued and it seems to me to be the way it should have been argued.
2. It was submitted by Mr Garde that the Bedford Lights were part of the design and decoration scheme of the Theatre but the evidence is to the contrary. The original design scheme of the Theatre, incorporating plasterwork, colours, furniture, obscured lighting, lamps and certain light fittings was the work of A.E. Higgins (Herald p.10). It appears that the Bedford Lights were designed by the staff of Bedford (Herald p.13). There is no indication at all that they were to designs from A.E. Higgins and indeed, they are quite different in style and appearance from the fittings that Higgins provided.
3. They were ordered only six weeks before the Theatre opened. It also appears that they were ordered not by A.E. Higgins but by the Phillips Brothers directly (ibid). It is not known precisely when they were delivered although Mr Lovell, who has had light fittings of a similar nature made for other historic buildings, said that he was surprised that they could have done it within 6 weeks and so I infer that they were delivered not long before the Theatre opened.
4. The Bedford Lights formed part of the decoration of the Theatre but the mere fact that something adds to the attractiveness of a place does not make it an integral part of that place. The Bedford Lights could no doubt have been replaced with other decorative fittings that would have produced a similar effect. Indeed, it would seem from Mr Lovell's evidence that this occurred in the other theatres that he identified that have survived from that period.
5. It was also suggested that they were integral to the lighting system. Their power sources were connected to a central control from which they could be switched on and off or dimmed. Mr Garde submitted that I should find that the powering of these lights indicated that the lighting had been worked out in advance. I agree that it is reasonable to assume that the wiring was in place before the final finishes were made to the walls and it seems that this went back to a central control then as it does now (see Herald - Palace of Light p.12). That does indicate an original intention to centrally control the raising and dimming of the theatre lighting. That included all the lights in the Theatre not just the Bedford Lights. Further, at the time all that must have been planned, the Bedford Lights had not been ordered.
6. As to their function, they certainly provided part of the illumination of the foyer area although how much they contributed is unclear. According to the Herald article referred to, there were 1200 other lights as concealed lighting in the foyer. It is not established that, if the Bedford Lights were removed, it would have been necessary to replace them simply to adequately illuminate the foyer. Some of them, which illuminated particular areas, such as the counters or toilets, had been replaced with light globes and even fluorescent lights but I saw no replacement lighting for the decorative lights in the foyer itself during my inspection. I make no findings based upon that because it was not argued. However the evidence is insufficient to support a finding that the Bedford Lights were integral to the lighting system of the Theatre in the sense that they could be said to form part of the building as distinct from being fixtures.
7. Mr Garde said that all the Bedford Lights required special fitting. He pointed to the winch of the chandelier and the special power points and wooden plates which were all still in the Theatre. He said that without these the Bedford Lights could not be used. Certainly they all had to be fitted and the choice of the special supporting power points seems to have been to allow them to be removed easily. To use them now they will need to be refitted using other plugs or electrical connections but that is the nature of a light fitting. It must be hung from the ceiling or on a wall and provided with power.
8. The fact that the pulley to raise and lower the chandelier is still in the Theatre is not determinative of the question whether the chandelier itself is a fixture. In Park v Lasrado [2005] QSC 211, a chandelier was removed from a house. It had been connected to a chain by a "U" bolt which suspended it from the ceiling. As in this case, it was raised and lowered by a pulley system located in the ceiling space. The learned judge determined that the chandelier was not a fixture.
9. Mr Garde said that the Bedford Lights are complimentary to one another and part of a scheme of decoration of the foyer. With the possible exception of the chandelier and the two newel lights, they certainly have a similar style and finish. He is correct in pointing to the use of a "sunburst" theme on the sconces and the trident lights, which is also used on the front door plates but is not on the newel lights. It is a theme also seen in other articles in the Bedford Catalogue. The head of the woman on the boss on the stair hand rail is different. The other brass metalware has minimal decoration or design and is in a different style. The only similarity they have to the Bedford Lights is that they are also made from brass and they were probably also made by Bedford. As to the suggestion that they were part of a scheme for the decoration of the foyer, the decorative scheme for the Theatre was by A.E. Higgins not Bedford and the Bedford Lights were made just before opening. I cannot find that they were part of any "scheme" although I infer they were intended to match one another and it would be surprising if someone from Bedford had not come to the Theatre to see where they were go. Someone must have turned his mind as to what lights should be ordered and have satisfied himself that they would fit in with the A.E. Higgins interior but I cannot find that the Bedford Lights were part of any overall design scheme. Indeed, they are very different from the A.E. Higgins design scheme.

1. It could not have been known with any certainty how the Bedford Lights would fit into the already existing design elements of the Theatre until they were in place. If Palais Pictures had decided shortly after the opening, or indeed at any time during the Occupancy Period, to take them down and replace them with something else one would expect that it could have done so. Yet since it was not a tenant under a lease it did not have the protection of s.48 of the Landlord and Tenant Act 1915 and so if they were fixtures they would not have been removable without the consent of the Crown. It seems unlikely that this would have been Palais Pictures' intention.
2. Further, it seems from Mr Lovell's evidence that no other theatre of a similar nature from that period has retained its original lights. I should not therefore assume that the proprietor of such a theatre would never have intended to change the lighting system. It seems unlikely that Palais Pictures would have intended to lock itself into a situation that it could not have changed the Bedford Lights without permission of the Crown.
3. That is not to say of course that permission would not have been given if it had been sought. However from the correspondence it would seem that both Palais Pictures and the officers of the Crown regarded the Theatre, however inaccurately, as belonging to Palais Pictures. In reality it is unlikely that Palais Pictures would have asked permission to change the Bedford Lights and if it had, the officers of the Crown may well have asked why their permission was necessary. It seems likely that it was the intention of both Palais Pictures and the Crown that the Bedford Lights would remain the property of Palais Pictures. There is nothing to indicate an intention on the part of anyone that, immediately upon installation they would become a permanent addition to the Land.

1. It was argued by the Crown that the Bedford Lights were brought into the Theatre for the purpose of the permanent use of the Theatre as a theatre. Reliance was placed on the decision of Sargeant J in Vaudeville Electric Cinema Ltd v McMillan [1923] 2 Ch 74, where it was held that theatre seats screwed to the floor of a theatre became fixtures. His Lordship said (at p.87):

"There can be no doubt that in the present case, when the seats were placed in the cinema hall they were placed there for the purposes of the permanent use of the cinema, as a cinema: they were intended to be used as part of the permanent equipment of the building".

1. However, in that case the seats were placed there by the owner of the theatre, not by a tenant or licensee, as his Lordship noted:

"The fact that here the owner of the property was the owner of the chairs, and that the chairs were being affixed for the permanent benefit and equipment of the property, seems to me to distinguish altogether this case from Lyon & Co v. London City and Midland Bank [1903] 2KB 135."

1. In the case his Lordship distinguished, it had been decided that theatre seats that had been hired by the owner of a theatre and screwed to the floor did not become fixtures that were subject to a mortgage of the theatre building.
2. The reasoning in Vaudeville Electric involved seats. Clearly, without seats for the audience to sit on a theatre is no longer a theatre but you can have a theatre without decorative lights to supplement the lighting in the foyer and any such lights can be changed if the proprietor should wish to change the decor.
3. Further, the mere fact that the chattels may be intended to remain in position for and indefinite and lengthy period is not conclusive (NH Dunn Pty Ltd v. LM Ericsson Pty Ltd).

1. Mr Garde said that it was "telling" that the Bedford Lights had remained in place for eighty years. The intention to be assessed is, of course the intention of the person who installs the chattel as at the time of its installation. It could not be known then how long it will remain in position. What happens to the chattel after it is installed is not relevant. If it is argued that, since it was Palais Pictures that brought the Bedford Lights onto the land and that same company that left them in place, that might allow one to infer that it was always its intention to leave them in place, I do not think that follows. Circumstances change. Palais Pictures did get its further term and then part of the way through that it got a Crown Lease of 50 years. The most significant circumstance in which it might have wanted to remove the Bedford Lights therefore never arose. In these circumstances it is not possible to draw any inference from the mere fact that they were never removed.
2. Further, when the leasehold was sold to Tymbook, the Bedford Lights were identified in the sale documents as being chattels that were specifically assigned as such to Tymbook. A copy of the contract was forwarded to the Crown. If one were to draw any inference from the later conduct of Palais Pictures that conduct would indicate that it did not regard them as fixtures. However, it is the circumstances at the time of installation that are relevant, not what happens afterwards.

The cost could not have been amortised during the term

1. More significantly, in this case, Palais Theatres did not own the Land and had no interest in augmenting its value. Its undoubted intention was to make a profit by showing films in the Theatre. To that end it needed occupation of the Land for a very long time. It only had a permissive occupancy of 21 years, a period insufficient, according to Mr Phillip's letter of 16 February 1926, to amortise an expenditure of even £75,000; yet it has been found that the cost of constructing the Theatre was "...of the order of £160,000." (Possession Judgment para 17). Recovery of such sum would be dependant upon it receiving another term or selling the improvements.
2. Yet it was contemplated in the Occupancy Agreement that this might not occur and one of the possible scenarios provided for in that event was that Palais Pictures would have to choose between two options, the first being to wholly remove the Theatre and the second, being to move out, necessarily leaving the Theatre to the Crown. Given that its removal would have amounted to demolition and have imposed upon Palais Pictures the cost of removing the rubble and reinstating the Land, the first option might not have been an economical proposition. It could not simply have taken what was of value and left the rest. Its right of removal was subject to its covenant to reinstate the Land. If it took the second option and moved out, it would only be able to take whatever was not legally a fixture. It is therefore unlikely to have been the intention of Palais Pictures at the time the Bedford Lights were installed that they should form a permanent part of the Theatre.
3. In the circumstances posited, it would have been its undoubted intention to take with it everything that it could. That is quite inconsistent with the notion that it intended the Bedford Lights to become fixtures and part of the Land.

1. Weighing up all these objective factors I have concluded that it was not the intention of Palais Pictures when it installed the Bedford Lights that they were to become fixtures and form part of the Land. Its intention was that they should continue to retain ownership of them as chattels. The consequence of this finding is that the Bedford Lights, having been purchased by Tymbook are its property and must be returned to it and orders will be made accordingly.
2. Costs will be reserved because the question of costs was not addressed but the parties will be aware of the limited circumstances in which costs may be awarded in this List.