Fu v Giant Turtle Investments Ltd [2004] TOSC 20; LA 002 2004 (28 April 2004)

IN THE SUPREME COURT OF TONGA
LAND COURT JURISDICTION
NUKU’ALOFA REGISTRY

LA. 02/2004

BETWEEN:

XIANG QI FU
Plaintiff

AND:

GIANT TURTLE INVESTMENTS LIMITED
Defendant

BEFORE THE HON. CHIEF JUSTICE WARD in Chambers

Counsel: Mr. Niu for plaintiff
Mr. Afeaki for defendant

Date of Hearing: 28 April 2004.
Date of Ruling: 28 April 2004.

RULING

As part of a wider dispute arising from the termination of the plaintiff’s tenancy of premises belonging to the defendant, a question has arisen whether two air conditioning units left on the premises are fixtures. If they are, there does not appear to be any dispute that they are landlord’s fixtures.

The first, smaller unit was suggested to be one of two similar units on the premises. It was accepted that, at the commencement of the tenancy, there was one such unit but that the tenants had installed another. When the court inspected the premises, there was only one such unit. Mr. Niu concedes that it must, therefore be treated as that installed by the landlord. I agree but, in any event, it is clear it is a fixture.

The second and very much more substantial unit was undoubtedly installed by the tenant. It is a very large structure approximately 5-6 feet high and well over that height if a wooden extension is included. It is stands on the floor resting on two wooden battens. It is not possible to see if they are fixed to the floor or whether the machine itself is fixed to them. I think it is unlikely as the whole structure is undoubtedly very heavy and needs no further restraint.

In itself, it would not appear to be a fixture. However, the manner in which it has been installed is suggested by the defendants to make it a fixture. It has required the installation of its own separate electric power supply to which it is connected by a plug and flexible cable. It has a water supply which is piped to and away from it by a series of plastic pipes. The supply pipes have been taken from the water tank outside the building, brought down the outside of the wall, across the building under the floor, through a hole cut in the floorboards and thence across the floor to the unit. Other pipes, which would appear to be the exit pipes, have been taken out through the wall by breaking a rough hole in the exterior cladding of the building.

It is clear that the building was leased for use as a restaurant and the unit was to provide for the air conditioning of the whole of the public part of the premises.

In general terms, it an object is attached simply by its own weight, it will not be considered as a fixture unless it is show that the intention was to make it part of the premises.

In determining that, the court must consider the purpose for which it was placed there. If it was placed there for the substantial and permanent improvement of the premises, it may be a fixture. The court may also consider whether the unit can be removed without any substantial damage to or alteration of the premises. The general rule is that, if it can be removed without irreparable damage, the degree of damage is irrelevant. However, the manner of installation and the extent and nature of the damage that will be caused by its removal may be relevant to the determination of the intention of the tenant when he installed it.

In this case, as has been stated, the unit was clearly not affixed to the wall or floor of the premises. However, the manner in which it had been installed does suggest it was installed as a permanent improvement of the premises. The provision of a special electricity supply does not necessarily make it a fixture but the reasonably extensive piping of a water supply points the other way.

I have no doubt that it is possible to remove the unit without any real risk of damage to itself but the premises will be left with the pipe work and the permanent damage to the building caused by its badly executed installation.

In the end, I find that the critical factor. I am satisfied that the installation was such that it was intended to make it a permanent improvement. If it were to be removed the defendant would be left with permanent pipe work with no purpose and surrounding damage caused by the manner in which it had been installed. If the pipe work is removed, the floor and the wall will need repair going beyond minor correction.

I rule therefore, that the larger air conditioning unit is a fixture and has become part of the premises. It is, therefore, the property of the defendant and must be left.

NUKU’ALOFA: 28 April, 2004.

CHIEF JUSTICE