The IPAA January/March 2013 edition includes an interesting article on what a fixture is in its summary of the case Cancer Care Institutes of Australia P/L (Administrator Appointed)  NSWSC 37. Where an item is ‘affixed’ to the land to any extend other than simply resting by its own weight, I undestand that the common law regards this prima face as a fixture, which may be rebutted by evidence of intention to the contrary.
It is a common stance of a liquidator appointed over a building that he/she would argue that all fixtures are under his/her control. However, where an asset is fixed to a property by a tenant of a building, this assertion by a liquidator becomes more difficult. The PPSA does not cover fixtures.
The Cancer Care case involves $9m worth of medical equipment (linear accelerators used in radiation treatment) that had been installed at a property and the Administrator (who was the tenant) was arguing that the equipment was not an asset of the landlord despite them being installed on steel frames grouted into the floor. Of note was that the machinery was purchased on credit and a PMSI was granted by Cancer to the equipment supplier and that a written lease with the landlord had not been entered into prior to the installation of the equipment. The Court found that the equipment were not fixtures.
This is indeed an interesting case. From a PPSA perspective, it was interesting that the PMSI was just one of the indicia which the judge looked to in determing whether the equipment was a fixture. The judge looked to the common law interpretation of fixture to decide the case. Was there room perhaps for the judge to look at the validity of the PMSI and say that if it was a valid PMSI then it could not be a fixture?
We have also written some articles about this case on our CCH Law Chat blog at http://www.law
Agree it would have been nice for the Judge to talk about the PMSI but as so often the case these extra bits of judicial guidance get left out / uncommented upon. Its certainly another way at coming at the issue. Perhaps it could even be described as some form of accession (noting however that buildings are clearly not ‘other goods’) ?