Svedala Australia Ltd v Pegasus Gold Australia Ltd [2001] NTSC 83

Queensberry Leases Case (1819) 1 Bli 339, 4 ER 127; considered

Benning v Wong [1969] HCA 58; (1969) 122 CLR 249; considered

Fixtures - Mining plant - items of plant - whether constitute "fixtures" for the purposes of the Workmen's Liens Act NT - items in question formed integral parts of mineral processing plant as a whole - items of plant in situ constitute removable fixtures for the purposes of the Act

Jovista Pty Ltd v Pegasus Gold Australia Pty Ltd & Ors [1999] NTSC 62; (1999) 8 NTLR 171; followed

North Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW) [1940] HCA 7; (1940) 63 CLR 52; considered

Fixtures - trade / tenants fixtures - rights of removal - position of rival claimants - equipment to constitute fixtures until actually severed

Reynolds v Ashby & Sons [1904] AC 466; considered

Bain v Brand (1876) 1 App Cas 762; considered

Hobson v Gorringe [1897] 1 Ch 182; followed

Emanuel (Rundle Mall) Pty Ltd v Commissioner of Stamps (SA) (1986) 39 SASR 582, affirmed (1986) 41 SASR 122; followed

Commissioner of Stamps (WA) v Whiteman Ltd [1940] HCA 30; (1940) 64 CLR 407; followed

Eon Metals NL v Commissioner of State Taxation (WA) (1991) 91 ATC 4841; 22 ATR 601; not followed

Svedala Australia Limited ACN 000 197 428 v Pegasus Gold

Australia Ltd (Administrators Appointed) ACN 009 628 924

[2001] NTSC 83

[1] Between 5 March 1993 and 18 March 1999 the defendant was the registered lessee and occupier of Mineral Lease (Northern) 1070 located near Edith River where it operated the Mount Todd Gold Mine.

[2] The plaintiff manufactured and supplied to the defendant certain mineral processing and other associated equipment which comprised an essential part of the mine plant. The equipment comprised Barmac vertical spindle impact crushers, vertical regrind mills, high frequency screens, pumps, secondary crushers, vertical screens and vibrating feeders.

[3] During the period July 1997 to December 1997 the plaintiff supplied spare parts for use in repair and maintenance work on the Barmac crushers and secondary crushers and other processing equipment it had supplied to the defendant. The plaintiff sent invoices to the defendant in respect of those materials in sums totaling $264,042.36, which remain unpaid. The invoiced sums accrued due thirty days after invoice.

[4] On 12 December 1997, Administrators, pursuant to Part 5.3A Division 2 of the Corporations Law, were appointed as Administrators of the defendant.

[5] On 24 December 1997 in purported pursuance of the Workmen's Liens Act NT the plaintiff lodged a Notice of Contractor's Lien with the Registrar-General of the Northern Territory against the defendant's estate and interest in Mineral Lease (Northern) 1077 in respect of the unpaid monies. In these proceedings the plaintiff seeks judgment in the sum of $264,042.36 for goods supplied and an order enforcing the claimed lien. The defendant, whilst eventually admitting the monetary claim, denies that the plaintiff was entitled to a lien over the defendant's interest in the Mineral Lease. In particular the plaintiff asserts and the defendant denies that the Barmac vertical spindle impact crushers and other processing equipment for which spare parts were supplied by the plaintiff to the defendant constituted fixtures to the land. In short, subject to one argument I shall notice shortly, the question is whether the plaintiff supplied materials in connection with work done or to be done to "fixtures" for the purposes of the Workmen's Liens Act NT.

[6] The preliminary stages of the mining operation at Mount Todd commenced in mid 1992. Production commenced in late 1993.

[7] A method known as the heap leach method was adopted by the defendant for the recovery of gold in the early stages of the mine's development. First, the raw rock was mined from the pit. The size of mined ore varied greatly from one cubic metre lumps down to less than one millimetre. The ore was then reduced in size through three stages of crushing into finer ore of nominally less than eight millimetres in size. The crushed ore was then stockpiled on a leach pad where it was continuously doused with chemicals to leach the gold from the ore. Finally, the leachate collected continuously from the leach pad was separated from the chemicals and the recovery process was complete. These steps of the production process proceeded simultaneously as the raw ore was continuously being mined.

[8] This method of production continued up to a later phase of operation when the plant was substantially upgraded by the addition of a fourth crushing stage, two milling stages and a more complex extraction and recovery stage.

[9] The mining equipment supplied by the plaintiff to Mount Todd was used in relation to the crushing, screening, feeding, milling and extraction processes.

[10] In the later phase crushing stage raw ore was fed into a primary crusher from where it was discharged via a conveyor to a primary crushed ore stockpile. The rock comprising the primary crushed ore stockpile was recovered by reclaim feeders below the stockpile. The recovered ore via a series of conveyors, surge bins and feeders was then passed across three vibrating screens, called secondary screens, for the purpose of separating the ore by size. The larger oversize ore was fed into three secondary crushers and the smaller ore was fed via a conveyor and surge bins into eleven tertiary crushers. The tertiary crushers were designed for crushing ore of less than thirty millimetres. The rock discharged from the secondary crushers was recirculated back over the secondary screens. The rock from the tertiary crushers was via a series of conveyors and feeders passed across another series of four vibrating screens, called tertiary screens, separating the ore by size. The oversize ore was recirculated back to the tertiary crushers and the finer ore less than eight millimetres was fed into the quaternary crushing circuit. The rock discharged from the quaternary crushers was via a conveyor and surge bins passed across a series of vibrating screens, called quaternary screens, separating the ore by size. The oversize ore was recirculated back to the quaternary crushers and the finer ore was then sent to a fine ore stockpile prior to the milling stage.

[11] During the milling stage the ore from the fine ore stockpile was recovered by reclaim feeders below the stockpile and fed into three ball mills. The ball mills ground the ore into a micron size material to accommodate further processing in the extraction and recovery stages. It was intended in the plant design that the oversize product from the ball mills after separation by hydro-cyclones was fed into a vertimill which would grind the oversize ore into a finer product. The vertimill although commissioned was never operated continuously as part of the size reduction process.

[12] During the extraction stage the material from the mills was exposed to various chemicals, referred to as a carbon in leach process, which caused gold particles to separate from the ore and attach themselves to carbon particles. The gold particles were subsequently separated from the carbon particles and the extraction stage was complete.

[13] The plaintiff supplied various equipment to Mount Todd during the period 1993-1997. The equipment supplied included:

• (a) Barmac crushers;

• (b) Secondary cone crushers;

• (c) Secondary carbon recovery and trash screens; and

• (d) Pumps.

[14] A Barmac is a rock crushing machine designed for use in the mining and quarrying industries. Barmacs were used in both the tertiary and quaternary crushing stages of the defendant's mining operation. In the third stage it was used to reduce ore from a size of approximately thirty millimetres to a size of eight millimetres. In the fourth stage it was used to reduce ore from a size of eight millimetres to a size of three millimetres.

[15] The Barmac is a vertical spindle impact crusher. It uses the impact velocity of rock on rock to achieve its crushing action. This is achieved by the use of a rotor which spins at up to twelve hundred revolutions per minute. The feed material enters the centre to the rotor and exits through discharge ports in the outer circumference. Barmacs are supplied with feed material through a feeder. As the rock exits the rotor it impacts on other rocks in the crushing chamber.

[16] The Barmacs supplied to Mount Todd are duopacters. In duopacter models, a second stream of material in a controlled quantity is introduced via a cascade feed system into the crushing chamber turbulence. This improves the energy transfer between the particles, and in combination with the rotor diameter and speed, can increase the quantity of ore being crushed without increasing the energy level required.

[17] A Barmac, when new and unused, weighs approximately thirteen tonnes with a stand fitted. Once used, its weight increases to approximately fifteen tonnes, because extraneous ore becomes trapped inside the crusher. Each Barmac is approximately three metres high by two and one half metres wide by three metres long. A Barmac comprises four main sections:

• (a) A feed hopper into which the ore is introduced;

• (b) the crushing chamber;

• (c) the transmission housing assembly housing the bearing cartridge and supporting the two drive motors; and

• (d) the rotor.

[18] The Barmac crusher is protected by a number of wear parts. Wear parts are "sacrificial linings" which require replacement as they wear away in order to preserve the life of the rotor and protect the integrity of the major components of the crusher which are expensive and time consuming to repair. Some of the most common wear parts are:

• (a) The liner plates which protect the upper and lower sections of the rotor from abrasion;

• (b) The distributor plate which is the first point of impact for rocks entering the rotor;

• (c) Rock tips. These are lined with tungsten which takes most of the wear as the rock slides out of the rotor discharge port. Without the rotor tip insert the rock would slice the rotor in half within thirty minutes of continuous operation.

[19] Wear parts are those parts which have immediate contact with the ore to be crushed. Each of these parts is designed to be changed without the need to dismantle the entire Barmac. They are replaceable without the need to remove the machine.

[20] Although the Barmacs can be run independently of one another, they cannot be operated effectively unless operated simultaneously with vibrating screens in a closed circuit.

[21] During the period 1993 - 1996 the plaintiff supplied nineteen Barmacs each with a support stand and two two hundred and twenty kilowatt drive motors.

[22] Each of these nineteen Barmacs was bolted to a frame and mounted into a support stand on anti-vibration mounts. Each frame and stand is constructed from fabricated steel, and is approximately two and one half metres wide, two and one half metres long and one and one half metres high. Each frame and support stand are in turn attached to a larger support structure and housing which respectively supports and encases the Barmac, the feeder and the feed bin structure. The support structure and housing encases the Barmacs, feeders, surge bins and other equipment in each of the sections.

[23] The Barmacs were standard heavy duty mining machines. They were supplied with their own support frame, which was bolted directly into the supporting structural steel work of the tertiary crushing station. The footing of the supporting structural steel work was embedded into the ground with concrete. The supporting structural steel work surge bin and feeders were not supplied by the plaintiff, but were purpose designed, manufactured and constructed by others for the installation of the Barmac crushers at Mount Todd at the time the Barmacs were supplied.

[24] Each section of the Barmacs were aligned on a stand within a continuous steel housing structure. Above each series of Barmacs is a feed bin structure which had a four to five thousand tonne rock capacity in relation to the tertiary section, and an eight to ten thousand tonne capacity in relation to the quaternary section. The feed bin was fed by a feed tripper conveyor belt, which was located above the feed bin. The feed bins had a series of five or eight outlets depending on whether it was in the tertiary or quaternary section. Each outlet had a separate belt feeder which controls the flow of rock into each Barmac. The rock was crushed in each Barmac and discharged through a shute below the floor level onto a discharge conveyor belt whereby it was conveyed to the screening circuit.

[25] The dimensions of the tertiary circuit were approximately sixteen metres high, thirty five to forty metres long and eight to ten metres wide. It weighed many hundreds of tonnes. It was built to withstand cyclonic conditions, and was therefore particularly heavy. The entire structure was attached to the ground by steel columns bolted to concrete foundations set in the ground.

[26] The dimensions of the quaternary circuit were approximately sixteen metres high, twenty four to twenty five metres long and eight to ten metres wide. It weighed several hundreds of tonnes.

[27] The Barmacs could be moved. Removal of the Barmacs from the site would involve the following steps:

• (a) the feed hopper would be cleaned out to remove the excess ore stored inside;

• (b) the top half of the Barmac would be lifted off;

• (c) the balance of the extraneous ore caught inside the Barmac would be cleaned out;

• (d) the electrics would be disconnected and the rotor assembly removed;

• (e) the Barmac would then be re-assembled without the rotor or the drive motors and drive pulleys;

• (f) each Barmac could be removed one at a time with the stand in place and it would require a crane to do so;

• (g) the feet, which would have remained in the structure/housing, would need to be removed;

• (h) the feet would then be re-affixed to the Barmac and the supporting stand, and transported to the new site by truck.

[28] All this could be achieved with reasonable facility. The plant incorporated overhead heavy duty gantry cranes capable of lifting the Barmacs into and out of their working stations.

[29] The plaintiff also supplied the defendant with three secondary crushers, three secondary screens, several carbon recovery and trash removal screens, a Vertimill and twenty six pumps.

[30] The secondary crushers were supplied in the seven major components namely the main shaft assembly, pinion shaft housing assembly, hydro set assembly lubricated system, motor, and top and bottom shell. These components, once assembled, were installed on the secondary crushing station which is located on a substantive steel tower approximately twenty five metres high.

[31] These secondary crushers were known as "84 inch hydrocones". Each hydrocone, which weighed approximately eighty four tonnes when empty was used to break ore down from approximately three hundred millimetres to thirty millimetres in a closed circuit with the secondary screens. A hydrocone is a cone crusher, a generic name for a particular style of compression crusher.

[32] The hydrocone crushers were assembled three in a row. Above each was a screen, which in turn was fed by a feed bin and conveyor. Below each bin was a discharge feeder. Ore was fed from a feeder into a vibrating screen and thence into the hydrocone crusher. All three crushers were built into a steel structure approximately twenty five metres high. This was the tallest structure on site with the exception of the ore stock pile. The feed bin elevated above the crushers had a capacity of between four to five tonnes. There was a substantial concrete component to the structure. The entire secondary crusher section would weigh thousands of tonnes.

[33] The secondary crushers were bolted directly to the steel structure of the secondary crushing station. That steel structure was designed to accommodate the vibration and out of balance dynamic forces encountered in the operation of cone crushers. Although removable, the size and the nature of the operation of the secondary crushers in the circuit meant that once installed, they were not readily moveable.

[34] The secondary screens were installed above the secondary crushers. Ore was fed out of a bin onto a belt feeder, which in turn fed the three screens.

[35] The screens measured approximately three metres by six metres and weighed approximately fourteen tonnes each.

[36] The screens included a drive mechanism which vibrated the screen permitting the screen to sort the material into the requisite size and to pass the larger material to the secondary crushers and the smaller material to the tertiary crushing circuit.

[37] Once the screens were located above the crushers they were bolted into the secondary station framework. They were not easily removable once installed because they were bolted down and other equipment required removal before the screens could be removed. All maintenance and works incorporating the materials supplied from time to time by the plaintiff into the secondary crushers and screens was necessarily done in situ.

[38] The pumps supplied by the plaintiff were of various models. Pumps are an integral part of the extraction and recovery plant process. The pumps were bolted down to fabricated steel bases and in turn to concrete foundations. They were attached to pipes to permit liquids to flow through them.

[39] All the items of equipment in question were plainly intended to form part of the gold mine plant for the indefinite life of the mine and were installed in situ for that purpose. The plain object and purpose for which the items in question were installed were their use for such time as they were needed. None of the equipment was removed from the site at any time the defendant operated the mine. The mining plant and equipment in question was sold by the defendant with the Mineral Lease in the sale of the Mount Todd Gold Mine as a going concern. The Mineral Lease in its terms requires mining plant and equipment to be removed at the expiry of the lease. Indeed s 185 Mining Act NT requires removal of all plant, machinery, engines and other equipment from the tenement at the end of the lease. The lease was for a term of fifty years. The mining operation commenced in 1993. It was expected to continue until about 2004. In fact it ceased late in 1997.

[40] The evidence before me establishes that the Barmac crushers and other equipment, whilst large and heavy, are nevertheless removable by crane and transportable once detached from the remainder of the plant and that it was and remains an economic proposition to sell and relocate that equipment as was and is common mining industry practice. Moreover removal of the equipment would not damage it. I should also mention that the sale of the mine by the defendant in February 1999 as a going concern specifically included transfer of the mine plant and equipment.

[41] Before turning to the parties' submissions it is convenient to set out material provisions of the Workmen's Liens Act NT. Section 2 provides, in part,

"in this Act, where not inconsistent with the context the following terms have the following meaning:

'fixture' means such a fixture upon land as, having been attached to such land by the vendor, would pass to the purchaser upon the sale of the fee simple of the land."

"A contractor or sub-contractor shall have a lien for the contract price, so far as accrued due, on the estate or interest in land of any owner or occupier in each of the following cases -

(a) where the work is done, with the assent, express or implied, of the owner or occupier to the land or to any fixture thereon;

(b) where the materials are, with the assent, express or implied, of the owner or occupier, used or intended to be used in or about work done, or intended to be done, to the land or to any fixture thereon."

[42] I have set out s 5, as it appears in the Workmen's Liens Act NT Reprint "as in force as at 5 February 1998". The notes to that Reprint state that the Workmen's Liens Act NT comprises the Workmen's Liens Act 1893 of the State of South Australia as amended by the Ordinances and Act referred to in Part 2 of a Table. Part 1 of that Table refers to the South Australian Workmen's Liens Act 1893 and the South Australian Workmen's Liens Act 1896, being Act No. 658 of 1896.

[43] Section 1 of the 1896 Act provides:

"Liens shall be had under "The Workmen's Liens Act 1893" for materials furnished, although such materials may not be furnished in connection with work; and "The Workmen's Liens Act 1893", shall be amended and read and construed accordingly".

[44] The 1896 Act does not provide for its own commencement but was assented to on 19 December 1896.

[45] Section 5 of Part V ("Application of Laws") of the Northern Territory (Administration) Act 1910 (Cth) provides:

"Where any law of the State of South Australia continues in force in the Territory by virtue of section 7 of the Northern Territory Acceptance Act 1910, it shall, subject to any Ordinance in force under this Act, have effect in the Territory as if it were a law of the Territory."

[46] Section 7(1) of the Northern Territory Acceptance Act 1910 (Cth) (reprinted 31 December 1983) provides:

"All laws in force in the Northern Territory at the time of the acceptance shall continue in force, but may be altered or repealed by or under any law of the Commonwealth."

[47] The Northern Territory (Self-Government) Act 1978 (Cth) relevantly commenced 1 July 1979. Section 57 of this Act provides for continuance of laws. Section 57(1) provides (from 1 July 1984 reprint):

"Subject to this Act, on and after the commencing date, all existing laws of the Territory have the same operation as they would have had if this Act had not been enacted, subject to alteration or repeal by or under enactment."

[48] The effect of these provisions is that the 1893 South Australian Act as amended by the 1896 Act continued and continues as a law of the Northern Territory.

[49] It is regrettable that the current reprint of the NT Workmen's Liens Act (dated 5 February 1998) fails to incorporate the amendment effected by the South Australian Act of 1896.

[50] The plaintiff submitted that on a number of different bases it had a lien over the defendant's interest in the mining tenement. First it claimed a lien because the materials, it was said, were supplied in connection with work done to land. It was said that the gold mining process as a whole, that is, the extraction of the ore from the ground and the gold from the ore was work done to land and that the mining plant and equipment was part of the plant "which does that work to the land". This submission must be rejected on the simple ground that the materials were supplied in respect of items of plant associated with the extraction of gold from mined ore not ore from the ground.

[51] Alternatively it was said that the materials were used in or about work done to fixtures to the land. It was submitted that the items of mining plant and equipment supplied by the plaintiff were fixtures according to each of a number of different approaches to statutory construction and interpretations of s 5 Workmen's Liens Act NT, and in particular what the word "fixture" means in that section. It was submitted that the s 2 definition of fixture operates as a legal fiction. It was submitted that the legislature did not intend that the common law notion of fixtures would apply. It was submitted this is so because "fixture" is defined as it is and s 5 of the Act distinguishes between land and fixtures. If the common law idea of fixtures applied, it was said, then fixtures are to be regarded as part of the land and the distinction made no sense. It follows, it was submitted, that the equipment being physically attached to the land would automatically pass to a purchaser on sale of the fee simple. Thus, it was said, the existence of the mineral lease is irrelevant to the definition of fixture. It was further argued that if the statutory definition of fixture is adapted to the circumstances of a mineral lease a fixture must then be taken to mean something having been attached to the land by the lessee which would pass to the purchaser of the leasehold interest.

[52] Next, it was submitted, the equipment comprised fixtures applying ordinary principles because each piece of equipment was attached to the land and did not simply rest on its own weight. It was argued that the mining plant was entirely subservient to the mining business conducted on the land, it was attached exclusively for the better use of the land having no function or use or enjoyment independent of the mining business conducted on the land, and furthermore it was installed with the objective intention to use and exploit the land. It was also submitted that the provisions of the mineral lease itself are superfluous. Finally, it was submitted that having regard to all the circumstances, and in particular the degree and object of annexation, the period of annexation and the function to be served by its annexation that one could only conclude that the items in question comprised fixtures.

[53] The defendant on the other hand submitted that the items of equipment were not fixtures because:

• (a) the equipment was readily removable and transportable;

• (b) the items of equipment were physically attached to locate them within the overall plant operation and to stop them vibrating and developing out of balance forces, that is, they were attached for their better use as chattels;

• (c) the items of equipment were in virtue of the terms of the Mineral Lease and s 185 of the Mining Act NT required to be removed at the end of the lease; they could not therefore be regarded as part of the soil or any reversion;

• (d) it was an economic proposition to sell and relocate all the equipment;

• (e) it was common mining industry practice to sell and/or relocate the equipment if economic to do so;

• (f) the equipment could be removed without damage either to the equipment itself or to associated items of plant;

• (g) the equipment was attached for a temporary purpose and only as long as required.

**[54] I have found the resolution of this case to be a matter of some difficulty.

[55] The law of fixtures has been variously described by commentators as an "unprincipled metamorphosis", "out-dated and archaic", "tattered and torn", long in need of an overhaul and easy to state but difficult to apply. See generally, Lynden Griggs, "The doctrine of fixtures: questionable origin, debatable history and a future that is past!" (2001) 9 APLJ 51. As Lord Lindley said in Reynolds v Ashby & Son [1904] AC 466 at 473, 474 "My Lords, I do not profess to be able to reconcile all the cases on fixtures, still less all that has been said about them." Deceptively simple statements such as that of Lord Browne-Wilkinson in Melluish v BMI (No 3) Ltd [1996] 1 AC 454 at 469, viz. "Under the general law chattels fixed to the land become the property of the owner of the land.", simply do not explain a multitude of decisions, if by 'fixed' is meant 'attached', and if by 'land' is meant soil or dirt, the physical thing as opposed to some legal interest therein. Moreover as Lord Lloyd of Berwick said in Elitestone Ltd v Morris [1997] UKHL 15; [1997] 1 WLR 687 at 690, 691:**

"Thus the sole remaining issue for your Lordships is whether Mr Morris's bungalow did indeed become part of the land, or whether it has remained a chattel ever since it was first constructed before 1945.

It will be noticed that in framing the issue for decision I have avoided the use of the word 'fixture.' There are two reasons for this. The first is that 'fixture,' though a hallowed term in this branch of the law, does not always bear the same meaning in law as it does in everyday life. In ordinary language one thinks of a fixture as being something fixed to a building. One would not ordinarily think of the building itself as a fixture. Thus in Boswell v Crucible Steel Co. [1925] 1 KB 119 the question was whether plate glass windows which formed part of the wall of a warehouse were landlord's fixtures within the meaning of a repairing covenant. Atkin LJ said, at p 123:

'... I am quite satisfied that they are not landlord's fixtures, and for the simple reason that they are not fixtures at all in the sense in which that term is generally understood. A fixture, as that term is used in connection with the house, means something which has been affixed to the freehold as accessory to the house. It does not include things which were made part of the house itself in the course of its construction.'

Yet in Billing v Pill [1954] 1 QB 70, 75 Lord Goddard CJ said:

'What is a fixture? The commonest fixture is a house which is built into the land, so that in law it is regarded as part of the land. The house and the land are one thing.'

There is another reason. The term fixture is apt to be a source of misunderstanding owing to the existence of the category of so called 'tenants' fixtures' (a term used to cover both trade fixtures and ornamental fixtures), which are fixtures in the full sense of the word (and therefore part of the realty) but which may nevertheless be removed by the tenant in the course of or at the end of his tenancy. Such fixtures are sometimes confused with chattels which have never become fixtures at all."

His Lordship approved and adopted the threefold classification set out in Woodfall, Landlord and Tenant, namely that an object brought on to the land may be (a) a chattel, (b) a fixture or (c) part and parcel of the land itself, categories (b) and (c) being treated as part of the land. So the question in that case - which the defendant says is the question in the present case - was whether the chattels in question became part and parcel of the soil itself.

"As the law has developed it has become easy to neglect the original principle from which the consequences of attachment of a chattel to realty derive. That is the principle of accession, from which the more particular example has been formulated, inaedificatum solo solo cedit. A clear distinction has to be drawn between the principle of accession and the rules of removability."

"The present case ... is concerned with the first of the two rules and not the second ... if the distinction is not noticed there is a danger that the true issue may become confused by questions truly relating to removability".

[57] Whether a chattel is a fixture, according to numerous authorities, depends on no single test but rather all the relevant circumstances of the individual case, acknowledging all the while that the degree and object of annexation remain important considerations; see the oft-cited cases collected and referred to by Conti J in National Australia Bank v Blacker [2000] FCA 1458; (2001) 179 ALR 97 at 103, 104. However having regard to "all the relevant circumstances" can belie application of principle. As Lord Eldon said in the Queensberry Leases Case (1819) 1 Bli 339 at 486-487, 4 ER 127 at 179:

"... all law ought to stand upon principle, and unless decision has removed out of the way all argument and all principle; so as to make it impossible to apply them to the case before you, you must find out what is the principle upon which it must be decided."

Resort to all the relevant circumstances must never "allow independent predilection to masquerade as principle.", to employ the language of Windeyer J in Benning v Wong [1969] HCA 58; (1969) 122 CLR 249 at 304, 305.

[58] Despite clear statements of principle such as those of Blackburn J in Holland v Hodgson (1872) LR 7 CP 328 at 334-335, and of Jordan CJ in Australian Provincial Assurance Co v Coroneo [1938] NSWStRp 35; (1938) 38 SR (NSW) 700 at 712, and warnings that one needs to be careful to avoid elevating to the status of principles mere "applications in particular factual circumstances of the general rules", as Murray J said recently in National Diaries v Commissioner of State Revenue (1999) 43 ATR 11 at 13, 14, 16, some principle identifiable in past decisions which provides clear guidance or is decisive of the present case remains, for me at least, elusive. It is not, I think with respect, sufficient or helpful to say that it is ultimately a question of fact or some difficulty in the application of established principle.

[59] In Reynolds v Ashby & Son, supra, at 474, Lord Lindley said:

"In dealing with fixtures attention must be paid not only to the nature of the thing and to the mode of attachment but to the circumstances under which it was attached, the purpose to be served, and last but not least, to the position of the rival claimants of the things in dispute."

The position of rival claimants, it has been said, is more pertinent to the question of rights of removal than the issue of annexure, though it has a relevant if subordinate role as regards the latter, see per Lord Clyde in Elitestone Ltd v Morris, supra, at 696C. The relevance and significance of the position of rival claimants to certain machinery erected and used by a lessee of a colliery is exemplified in the House of Lords decision in Bain v Brand (1876) 1 App Cas 762, where machinery attached to leasehold property by the lessee passed as fixtures to the heir of the lessee on his death rather than to his executor. This was so because the question of removability of the machinery as trade fixtures could only arise as between the heir to the lessee and the owner of the freehold, not as between the heir and the other beneficiaries of the lessee.

[60] Turning to the present case one approach is to say, as is the fact, that the chattels whilst attached to the plant superstructure were from the first intended to be accessory to the mining operation (or perhaps more specifically the ore processing operation) conducted on the land rather than accessory to the soil itself and that never having been intended to be part of the soil, at law they remain chattels. This view necessarily distinguishes tenants' trade fixtures cases on the ground that a tenant may but is not obliged to remove his or her fixtures at the end of the term: Wincant v South Australia [1997] SASC 6287; (1997) 69 SASR 126 at 144. Support for the conclusion that the plant items comprise personalty is to be found in the case law including the House of Lords decision in Wake v Hall (1883) 8 App Cas 195, especially at 205 per Lord Blackburn, at 209-210, per Lord Bramwell; Mitchell v McNeil [1909] WALawRp 27; (1909) 11 WALR 153; Stephen v Bell [1934] WALawRp 24; (1934) 37 WALR 52; Billing v Pill [1954] 1 QB 70; Margarula v Rose [2000] NTCA 12; the Privy Council decision in Standard Portland Cement Co Pty Ltd v Good (1982) 47 ALR 107, particularly at 112, per Lord Templeman; Neylon v Dickens [1979] 2 NZLR 714; Permanent Trustee Australia Ltd v Esanda Corporation Ltd (1991) 6 BPR 13, 420, and Eon Metals NL v Commission of State Taxation (WA) (1991) 91 ATC 4841, 22 ATR 601.

[61] An alternative approach is to say that particularly having regard to the position of the rival claimants the question is whether given the physical attachment of the items to the soil and their location and purpose and the currency of the mineral lease at the time the plaintiff supplied the materials, notwithstanding that the items were not only removable at the instance of the defendant but required by law to be removed at the end of the lease, whilst in situ the items of equipment were nevertheless fixtures until actually severed, that is, they were akin to trade or tenants' fixtures. Support for this approach is to be had, inter alia, in the hire purchase/mortgage cases, such as Hobson v Gorringe [1897] 1 Ch 182, and many of the tax cases, eg. Emanuel (Rundle Mall) Pty Ltd v Commissioner of Stamps (SA) (1986) 39 SASR 582, affirmed (1986) 41 SASR 122, Commissioner of Stamps (WA) v Whiteman Ltd [1940] HCA 30; (1940) 64 CLR 407. However, contrast Eon Metals NL v Commissioner of State Taxation (WA) (1991) 91 ATC 4841; 22 ATR 601, which was so heavily relied upon by counsel for the defendant.

[62] With some hesitation, particularly given cases such as Eon Metals NL, supra, I have reached the conclusion that the plaintiff supplied materials in connection with work done or to be done to items of plant which, in situ, constituted fixtures, albeit removable fixtures, and that the plaintiff was entitled to a contractor's lien over the defendant's interest in the Mineral Lease in virtue of s 5 Workmen's Liens Act NT. See Jovista Pty Ltd v Pegasus Gold Australia Pty Ltd & Ors [1999] NTSC 62; (1999) 8 NTLR 171.

[63] Whatever else the word "fixture" means in s 5 Workmen's Liens Act, it includes, I think, an unsevered removable fixture. I agree with counsel for the defendant that there is no reason to suppose the Workmen's Liens Act NT's reference to and definition of "fixture" excluded from its contemplation the general law of fixtures.

[64] Dixon J said in North Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW) [1940] HCA 7; (1940) 63 CLR 52 at 67:

"Ordinarily when the chattel elements by which a permanent system or apparatus is formed are assembled and embedded in the soil or established as part of a building they lose their independent nature and for the purpose of the law take on the character of land."

In the present case the items in question, in situ, formed integral parts of the mineral processing plant as a whole. That plant consisted of concrete flooring and associated concrete super-structures set in the ground to which were attached by bolts, crushers and screens and substantial steel super-structures. To these super-structures in turn were attached by bolts, other crushers and screens and sundry conveyor belts, feeder bins and other items all designed to operate in conjunction with one another as a whole for the indeterminate life of the mine. Whilst the relevant items could be individually detached and removed without destruction or damage to the items themselves or associated items or super-structure, such removal, absent replacement, rendered the plant as a whole significantly diminished or inoperative. In my opinion the mineral processing plant as a whole constituted buildings and the individual items of plant, in situ, constituted parts of the buildings which were integral to the overall purpose and use and enjoyment of the buildings. The individual items of plant could not operate alone or other than in conjunction with other plant items. Incorporated as they were into the overall mineral processing plant and their placement and function being integral and vital to the overall operation, in my view, notwithstanding that they were detachable and replaceable, in situ, they lacked individual identity as personalty. In the present case, I think, with respect, that the respective positions of the plaintiff and defendant are to be emphasised, and I have steadily borne them in mind in reaching my conclusion. As between the defendant lessee and the Crown, for instance, I should regard the mine plant items as lacking the character of land.

[65] The plaintiff has established its right to a contractor's lien pursuant to s 5 of the Workmen's Liens Act NT because it has established -

• (a) that as a contractor it supplied spare parts to the defendant
• (b) for a contract price which has accrued due
• (c) which spare parts were used or intended to be used in or about repair and maintenance work to mining plant equipment on the Mineral Lease which equipment comprised fixtures for the purposes of the Workmen's Liens Act NT

and it has registered the lien and brought appropriate timely proceedings to enforce the lien.

[66] I have already related that the defendant sold the Mount Todd Gold Mine including the plant as a going concern. Since the commencement of the proceedings the parties have set aside money on account of whom it might concern which has permitted the issue as to whether the plaintiff was a secured or ordinary creditor of the defendant to be decided without inconvenience.

[67] I shall hear the parties further as to what appropriate orders should be made consequent upon my conclusions. There will be judgment for the plaintiff.