May v Ceedive Pty Ltd

The appeal concerned a dispute between Mr May (the appellant) and Ceedive Pty Ltd (the respondent) regarding the nature of Mr May's occupancy of land at the Pottery Estate, Lithgow. Mr May had purchased a house on the land in 1969 and paid weekly ground rent. Ceedive acquired the entire Pottery Estate, including the land occupied by Mr May, in 1999. The central issue was whether Mr May's arrangement constituted a lease of "prescribed premises" under the relevant legislation, which would afford him protection against termination.

The court was required to determine two primary legal issues. Firstly, whether Mr May's house was a fixture attached to the land, or a chattel owned by Mr May, thereby impacting the nature of his tenancy. Secondly, the court had to consider whether the prior determination by the Consumer, Trader and Tenancy Tribunal that it lacked jurisdiction to hear Mr May's application, due to the absence of a residential tenancy, gave rise to an Issue or Anshun estoppel that would preclude Mr May from asserting his rights in the current proceedings.

The Court of Appeal found that Mr May's house was a fixture and an integral part of the land, notwithstanding any subjective intentions to the contrary. The court reasoned that the objective circumstances indicated the house was not severable from the land. Furthermore, the court held that the prior Tribunal decision did not create an estoppel because the Tribunal had determined it lacked jurisdiction, meaning there had been no decision on the merits of Mr May's claim. The court concluded that Mr May occupied "prescribed premises" under the Act, as the subject of the demise was land with a sufficient structure upon it.

Consequently, the appeal was allowed, and the decision of the primary judge was set aside. Orders were made dismissing the respondent's summons, declaring the premises to be "protected premises" under the Act, and ordering the respondent to pay the appellant's costs of the proceedings, the cross-claim, and the appeal.