Chamberlain v Scott

[2012] NZHC 2596

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2011-412-000842 [2012] NZHC 2596

BETWEEN  FATHER MARK CHAMBERLAIN AS TRUSTEE OF THE TRINITY TRUST Appellant

ANDTRUSTEES EXECUTORS LIMITED AND NAYLOR LOVE CONSTRUCTION LIMITED

Second Parties

ANDSUSAN HONOR SCOTT Respondent

Hearing:         3 October 2012

By way of Telephone Conference

Counsel:         P Cavanagh QC for Appellant

T Shiels for Respondent

Judgment:      5 October 2012

RESERVED JUDGMENT OF FOGARTY J

Introduction

[1]      This is a dispute essentially as to whether or not an Italian altar installed in the chapel of Teschmakers School for Girls, in 1926, is a fixture or a chattel.  The school closed over 30 years ago.

[2]      The property was sold to Dr Hiromoto Ochi, who has since died. The deed of sale specifically excluded the altar from the sale agreement.  The Dominican Sisters, who sold the property to Dr Ochi, want to donate the altar to the Holy Name

Catholic Parish in Dunedin.

CHAMBERLAIN V SCOTT HC DUN CIV-2011-412-000842 [5 October 2012]

[3]      Ms S H Scott is a descendant of the original donor of the land, Mr McCarthy. She is arguing that the removal of the altar and the stained glass windows constitutes an alteration to the building that requires resource consent.  She applied under the RMA for an enforcement order to prevent their removal.   In opposition to that application, Father Chamberlain, the parish priest of the Holy Name Parish argues that because the altar is not a fixture or part of the chapel its removal is not an alteration which requires resource consent.

[4]      In [9] of the judgment, the Environment Court identified as an essential fact to be determined:  “(1) is the altar a chattel or a fixture?”  It’s conclusion appears at the end of [34] as follows:

... Taking the structural evidence together with the evidence of the alterations of the alteration of the 1960s, we are of the view that overall the degree of annexation favours the proposition that the altar is part and parcel of the building.

[5]      That appears to be a finding that it was not a chattel, as the same paragraph cites the decision of Holland v Hodgson,[1] which is a leading case for the rules as to whether an item is a fixture or chattel.

[1] Holland v Hodgson [1872] LR 328, at 335.

[6]      The Court came to this decision after hearing evidence.   The Court heard from three witnesses who were treated as experts qualified to give evidence and opinion on the structural attachment of the altar to the chapel.  Two of them were stonemasons; Mr Wainwright, called by Ms Scott, and Mr Blucher, called by Father Chamberlain.  Ms Scott also called a structural engineer, Mr Macknight.

[7]      Mr Wainwright and Mr Blucher made some investigations identifying that the altar stood on a concrete base.  Mr Wainwright drew a diagram showing the concrete base extending into the table and reredos, approximately one metre above floor level.

[8]      I pause here to explain the expanded definition for the altar,…