New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Property


  1. 06/02/2017
    Property: PPSA; fixtures

    The appellants agreed to lease turbines worth about $44 million to Forge Group Power. Forge Group Power installed the turbines in a temporary power station at Port Hedland. Shortly after, Forge Group Power went into voluntary administration. The appellants had not registered on the PPS Register their interest, as lessor, in the turbines. Accordingly, the security interest remained unperfected. 

    The issue on appeal was whether the PPSA applied to the lease. If it did, the lease was a “PPS lease” and the appellants’ unperfected security interest in the turbines had vested in Forge Group Power as lessee immediately before the appointment of the voluntary administrators. This raised a question as to:

    • whether the turbines were fixtures as defined in the PPSA; and
    • whether the PPSA definition of “fixtures” imports common law principles relating to fixtures.


    • The definition of “fixtures” in s 10 of the PPSA imports common law principles relating to fixtures.
    • Applying those principles, the turbines had not become fixtures under of the PPSA. The lease was a PPS lease, and the appellants’ failure to perfect its security interest meant that Forge Group Power had better title to the turbines.

    Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq)  [2017] NSWCA 8
  2. 24/11/2016
    Property: personal property; alienation of personal property; assignment of causes of action; causes of action derive from Competition and Consumer Act 2010 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth); whether s 477(2)(c) of Corporations Act enables assignment of otherwise unassignable cause of action

    Aquatic Air Pty Ltd v Siewert  [2016] NSWCA 318
  3. 05/10/2016
    Property: leasehold; implied covenants & principle of non-derogation of grant; lease granted by local council as registered proprietor of land; council subsequently approved subdivision and creation of easement burdening leased land; whether had derogated from the rights granted under the lease
    Bankstown Trotting Recreational Club Ltd v Chisholm  [2016] NSWCA 274
  4. 02/09/2016
    Property: caveats; application by registered proprietor for order that caveat claiming a security interest in the land be withdrawn to enable the registered proprietor to refinance a first mortgage; registered proprietor disputes the validity of claimed security interest protected by the caveat; order made for withdrawal but allowing relodgement of caveat after refinancing; effect of order is to reduce registered proprietor’s equity in the land; whether primary Judge erred in ordering withdrawal; whether discretion conferred by Real Property Act 1900 (NSW), s 74M, constrained by requirement that the case be “unusual” or “rare” before an order for withdrawal of a caveat can be made

    Hanson Construction Materials Pty Ltd v Roberts  [2016] NSWCA 240
  5. 25/08/2016
    Property: compulsory acquisition of land; compensation; determination of entity with compensable interest in acquired land as between registered proprietor, mortgagor in default or incoming purchaser at date of compulsory acquisition

    Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd  [2016] NSWCA 224
  6. 25/08/2016
    Property: ownership dispute; entitlement to fit out and stock in retail stores; purported transfer and re-transfer of business assets in context of liquidation proceedings; property in different ownership may have been intermingled; whether primary judge erred in affirmative declaration as to ownership of disputed property

    Harjai v Shaun Robert Fraser in his capacity as joint and several receiver and manager of Pacific Street Properties Pty Ltd  [2016] NSWCA 223
  7. 15/08/2016
    Property: two long term commercial leases between same parties in same building; statutory charges and outgoings; lessee requiring payment as additional rent of any increase in outgoings “in respect of the Premises”; whether lessee obliged to pay whole of increase in outgoings, or proportionate share of increase in outgoings; construction of “in respect of the Premises” in each lease.
    Fitness First Australia Pty Ltd v Fenshaw Pty Ltd  [2016] NSWCA 207
  8. 19/07/2016
    Property: long term lease; primary judge found tenant abandoned premises and rejected claim that landlord had repudiated lease; whether landlord wrongfully retook possession; whether landlord repudiated lease; whether landlord mitigated loss.
    Duncan v Big Country Developments Pty Ltd  [2016] NSWCA 163
  9. 14/07/2016
    Property: duties of mortgagees; second respondent indebted to both applicant and second respondent; loans secured by both fixed and floating charges over first respondent’s assets; applicant alleged to have received payments to which it was not entitled under its security; contention that applicant, as mortgagee in possession, wrongfully caused payments to be lost to the first respondent; claim upheld at first instance; whether security holder bound to account to subsequent security holders and mortgagor for any surplus beyond amount secured; whether security holder owes fiduciary duty not to prejudice positions of subsequent security holders; recognised duties of mortgagee holding surplus funds after exercising power of sale; no general duty to account to subsequent security holder for moneys coming into mortgagee’s hands other than as a result of the exercise of a power of sale; “fiduciary” relationship only in the sense that mortgagee not entitled to surplus and obligated to account to those beneficially to surplus; appeal allowed.
    Nom de Plume Nominees Pty Ltd v Fingal Developments Pty Ltd  [2016] VSCA 159
  10. 08/07/2016
    Property: lease agreement included option to renew and option to purchase; whether lease void for uncertainty; whether land subject of the lease was identified or capable of identification; whether “right of use” required to be granted as part of option to purchase was an easement or a contractual licence; whether “right of use” was capable of being an easement.
    Taluja v Shree Shirdi Sai Sansthan Sydney Limited  [2016] NSWCA 158