Belgrave Nominees Pty Ltd v. Barlin-Scott Airconditioning (Aust) Pty Ltd

[1984] VR 947

(Judgment by: Kaye J) Court:
Supreme Court of Victoria

Judge:
Kaye J

Subject References:
Fixtures
Fixture or chattel
Construction contract
Sub-contract for supply and installation of airconditioning units
Annexation of units to freehold
Degree and object of annexation
Factors to be taken into account
Matters from which intention inferred.
Injunction
Mandatory injunction
Adequacy of damages
Applicable principles

Hearing date: 16 April 1984
Judgment date: 1 May 1984

Judgment by:
Kaye J

The plaintiffs, being the owners of two buildings, entered into a contract with a builder for the renovation of their buildings. The builder sub-contracted with the defendant for the supply and installation of an airconditioning plant for each building. The defendant supplied and fitted an airconditioning plant, including a chiller, to the roof of each building. Each chiller was positioned on a platform constructed on the roof of each building for its support. Each chiller stood free on its own weight on pads between its legs and the surface on the platform. The pads acted as shock absorbers. Each chiller was connected to the water reticulation system of each building by means of flanges and bolts, and water pipes were connected to a water pump which was secured to each platform. Electric supply cables forming part of the structure of one of the buildings was connected to an electrical junction box fitted to the chiller thereon. Connection to the electric power supply was not made.

The defendant had difficulty in recovering from the builder payments under the sub-contract, and it discontinued the installation work. Subsequently, the builder went into liquidation and the plaintiffs contracted with another contractor to complete the renovations. The defendant agreed with the new contractor to complete installation of the airconditioning system. Shortly thereafter, the defendant, without the knowledge or consent of the plaintiffs, removed the airconditioning plant.

The plaintiffs sought a mandatory injunction compelling the defendant to deliver up the plant or alternatively damages for detention, conversion and trespass, claiming that the plant was at the time of removal a fixture.

Held : (1) Whether the annexation of the plants was sufficient to constitute the plants fixtures must be determined by the circumstances in which the same were positioned on the building and more particularly be the intention as evidenced by the degree and purpose of annexation. The intention may be inferred from the nature of the chattel, the relation and situation of the party making the annexation vis-a-vis the owner or person in possession, the mode of annexation and the purpose for which the chattel was fixed. In the present case the inference arose from the nature of the airconditioning plant, the positioning and connection of the plant by the defendant, and the fact that when fitted the plant formed an essential part of the building.

Reid v Shaw (1906) 3 CLR 656; Australian Provincial Assurance Co Ltd v Coroneo (1958) 58 SR (NSW) 700; and Holland v Hodgson (1872) LR 7 CP 328, applied.

(2) The fact that the defendant was obliged under its contract with the contractor to maintain and repair the plant after installation did not necessarily give rise to an inference that the plant did not become annexed to the land until the maintenance period had expired since that obligation did not arise out of a contract between the owners and the defendant.

Kay's Leasing Corporation Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VR 429 and Hobson v Gorringe [1897] 1 CH 182, applied.

Appleby v Myers (1867) LR 2 CP 651, distinguished.

(3) The units were sufficiently annexed to the buildings to make them fixtures. Even slight fixing to the land is sufficient to raise the presumption that a chattel is a fixture so that the onus of proving otherwise rested upon the defendant who failed to discharge it.

(4) In considering whether an injunction should be granted or damages were an adequate remedy, the principal consideration is whether it is just in all the circumstances that the plaintiff should be confined to his remedy in damages.

Evans Marshall and Co Ltd v Bertola SA and Independent Sherry Importers Ltd [1973] 1 WLR 349; [1973] 1 All ER 992; Sanderson Motors (Sales) Pty Ltd v Yorkston Motors Pty Ltd [1983] 1 NSWLR 513, considered.

(5) In the present case, it was not just to confine the plaintiffs to the remedy in damages and an order should be made compelling the defendant to deliver up the plant.

Summons

Belgrave Nominees Pty Ltd, Crucible Building Pty Ltd and Bluestone Building Pty Ltd sued Barlin-Scott Airconditioning (Aust) Pty Ltd claiming a mandatory injunction compelling the defendant to deliver up two airconditioning units or alternatively the value thereof or damages for detention, conversion or trespass. The plaintiff applied to Kaye J. in chambers for summary judgment. The facts are stated in the judgment.

J. E. Middleton, for the plaintiffs.

W. J. Martin, for the defendant.

Kaye J :

The present proceedings arise in an action wherein the plaintiffs claim a mandatory injunction compelling the defendant to deliver up two airconditioning plants, and in the alternative $90,000 the value of the plants, or damages for detention, conversion, or trespass.

The plaintiffs seek special leave to bring before the Court or a Judge a summons for final judgment and, in the event of special leave being granted, leave to enter final judgment. In the alternative the plaintiffs seek an interlocutory injunction compelling the defendant to deliver up the airconditioning plants.

The facts relating to the plaintiffs' claim which are not disputed by the defendant are as follows: Since 30 December 1981 the firstnamed plaintiff and the secondnamed plaintiff have been the registered proprietors of the property known as 106-108 Victoria Street, North Carlton, and the firstnamed plaintiff and the thirdnamed plaintiff have been the registered proprietors of the adjoining property known as 102-104 Victoria Street, Carlton. The plaintiffs have been in possession of their respective properties since 8 June 1979. On each of the properties there is a building.

By an agreement made in 1981 Guide Building Pty Ltd (Guide) agreed to carry out for the plaintiffs alterations and renovations to the two buildings, the intention being to develop the buildings as a three storey office complex. On 17 August 1982 Guide sub-contracted with the defendant for the supply and installation of two airconditioning plants for the buildings. Between August 1982 and December 1982 the defendant supplied and fitted to the roof of the buildings two airconditioning plants, each of which included a chiller. The defendant positioned a chiller on the platform constructed on the roof of each building for its support. The chiller stood free on its own weight in Vibersorb pads between its legs and the surface of the platform. Had it been secured or attached to the platform, the chiller when in operation would have caused substantial noise by vibration. The pads acted as shock absorbers. The chillers were connected to the water reticulation system of the buildings by means of flanges and bolts and water supply pipes were connected to a water pump which was secured to each platform. Water pipes were fitted to each building in a manner to circulate water, either hot or cold as required, throughout each floor. Electric supply cables forming part of the structure of the building were connected to an electrical junction box fitted to the chiller on the premises at 102-104 Victoria Street. Connection to the electric power supply, however, was not made.

In the course of carrying out the installation work, the defendant experienced difficulty recovering from Guide progress payments to which it was entitled under the sub-contract. On 13 December 1982, Guide being then indebted to it in the sum of $161,499 and interest, the defendant discontinued installing the airconditioning systems.

On 10 March 1983 Guide was ordered to be wound up.

In June 1983 Martin Sacks and Associates contracted with the plaintiffs to complete the renovations of the buildings. By letter dated 18 November 1983 Tri-Continental Corporation Limited agreed to provide finance to the plaintiffs for completion of the works by Martin Sacks and sub-contractors, conditional upon the plaintiffs providing securities including first and second mortgages over the properties.

On 27 February 1984 the defendant agreed with Martin Sacks to complete the installation of the airconditioning system. The agreement was reached by Martin Sacks' acceptance of the defendant's offer made in a letter dated 27 February 1984. Terms of the agreement included that the work would be completed by 18 May 1984, and that Tri-Continental would make payments to the defendant on production of invoices. Shortly after 27 February 1984 the defendant resumed the work of installing the systems. On 7 March 1984 the defendant, without either the knowledge or consent of the plaintiffs, removed from the buildings the airconditioning plants incorporating the chillers, compressors and general works. The value of the plants so removed is $61,518.68, while the cost of replacement and reinstatement of similar plant including delivery and fitting is $90,000. It was anticipated that the buildings would be ready for occupancy by the end of May 1984. Without the airconditioning systems, the renovations would be incomplete. When completed, the market value of the two buildings is expected to be approximately $2,500,000. The plaintiffs estimate that approximately $2,000,000 will be required to discharge the mortgage securities over the two properties.

The plaintiffs claims for relief are based on the premise that at the time of removal from the building, each airconditioning plant was a fixture. These claims are founded on the general rule of common law that property in materials and fittings, once annexed to a building, become part of the freehold: see Hudson's Building and Engineering Contracts, 10th. ed., p. 655; and Voumard's Sale of Land, 3rd ed., p. 234. Whether the annexation of the plants was sufficient to constitute the plants fixtures must be determined by the circumstances in which the same were positioned on the platform, and more particularly the intention as evidenced by the degree of annexation and the purpose of the annexation. These principles of law were expressed by Blackburn J in the following passage when delivering the judgment of the Court of Exchequer Chamber in Holland v Hodgson (1872) LR 7 CP 328, at pp. 334-5:

"There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances as indicating the intention, viz., the degree of annexation and the object of the annexation. When the article in question is no further attached to the land, then by its own weight it is generally to be considered a mere chattel: see Wiltshear v Cottrell 1 E and B 674, and the cases there cited.
"But even in such a case, if the intention is apparent to make the articles part of the land, they do become part of the land: see D'Eyncourt v Gregory [Law Rep 3 Eq 382]. Thus blocks of stone placed one on the top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones, if deposited in a builder's yard, and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels. On the other hand, an article may be very firmly fixed to the land, and yet the circumstances may be such as to shew that it was never intended to be part of the land, and then it does not become part of the land. The anchor of a large ship must be very firmly fixed in the ground in order to bear the strain of the cable, yet no one could suppose that it became part of the land, even though it should chance that the shipowner was also the owner of the fee of the spot where the anchor was dropped. An anchor similarly fixed in the soil for the purpose of bearing the strain of the chain of a suspension bridge would be part of the land. Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to shew that they were intended to be part of the land, the onus of shewing that they are so intended lying on those who assert that they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to show that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel."

In Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700, at pp. 712-13, Jordan CJ, with whom Davidson and Nicholas JJ. concurred, expressed the principles and test to be applied as follows: "A fixture is a thing once a chattel which has become in law land through having been fixed to land. The question whether a chattel has become a fixture depends upon whether it has been fixed to land, and if so for what purpose. If a chattel is actually fixed to land to any extent, by any means other than its own weight, then prima facie it is a fixture; and the burden of proof is upon anyone who asserts that it is not: if it is not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and the burden of proof is on anyone who asserts that it is: Holland v Hodgson. The test of whether a chattel which has been to some extent fixed to land is a fixture is whether it has been fixed with the intention that it shall remain in position permanently or for an indefinite or substantial period: Holland v Hodgson, or whether it has been fixed with the intent that it shall remain in position only for some temporary purpose: Vaudeville Electric Cinema Ltd v Muriset [[1923] 2 CH 74, at p. 87]. In the former case, it is a fixture, whether it has been fixed for the better enjoyment of the land or building, or fixed merely to steady the thing itself, for the better use or enjoyment of the thing fixed: Holland v Hodgson; Reynolds v Ashby and Son [1904] AC 466; Colledge v H. C. Curlett Construction Co Ltd [1932] NZLR 1060; Benger v Quartermain [1934] NZLR s13. If it is proved to have been fixed merely for a temporary purpose it is not a fixture: Holland v Hodgson; Vaudeville Electric Cinema Ltd v Muriset. The intention of the person fixing it must be gathered from the purpose for which and the time during which user in the fixed position is contemplated: Hobson v Gorringe [1897] 1 CH 182; Pukuweka Sawmills Ltd v Winger [1917] NZLR 81. If a thing has been securely fixed, and in particular if it has been so fixed that it cannot be detached without substantial injury to the thing itself or to that to which it is attached, this supplies strong but not necessarily conclusive evidence that a permanent fixing was intended: Holland v Hodgson; Spyer v Phillipson [[1931] 2 CH 183, at pp. 209-10]. On the other hand, the fact that the fixing is very slight helps to support an inference that it was not intended to be permanent. But each case depends on its own facts."

Whether the intention of the party fixing the chattel was to make it a permanent accession to the freehold is to be inferred from the matters and circumstances including the following: the nature of the chattel; the relation and situation of the party making the annexation vis-a-vis the owner of the freehold or the person in possession; the mode of annexation; and the purpose for which the chattel was fixed; Reid v Shaw (1906) 3 CLR 656, at p. 667, per Griffiths CJ Facts from which the inference may be drawn that the plants were intended to be affixed permanently to the building are: the very nature of the airconditioning plants; the defendant, who carries on the business of suppliers and fitters of such plant, supplied positioned and connected up the airconditioning plants as a sub-contractor; the plaintiffs are the registered proprietors of the freeholds; the chillers were positioned on the platforms and connected up by pipes to the water pumps fitted to each platform which in turn were connected to the reticulation system of each building; and the plants, when fitted, formed an essential part of the buildings necessary for their use and occupancy as modern office premises.

Mr. W. J. Martin, counsel for the defendant, submitted that the defendant's intention ought not to be inferred without regard to its sub-contract with Guide and particularly the circumstance that the sub-contract remained only partly performed; counsel relied upon provisions in CL12 of the sub-contract by which the defendant agreed to remedy any defect in the plant. It was said that because some repairs could not be carried out in situ it would be necessary to remove the plant for that purpose.

Counsel's submission was based on the assumption that the sub-contract continued to be binding on both parties to it. It is noted that by letter dated 13 December 1983 the defendant gave Guide notice of its intention to suspend the execution of the work until unpaid progress payments were made. The notice was given pursuant to CL5(g) of the sub-contract. By CL7 procedure was provided for determination of the sub-contract by the defendant in the event of default by Guide. Evidence does not reveal whether the defendant availed itself of the right to determine the sub-contract by following the procedure, or whether the sub-contract was otherwise determined. The defendant, having subsequently entered into an agreement with Martin Sacks for completion of the airconditioning works, suggests that the sub-contract was determined. For the purposes of examining Mr. Martin's submission, however, I assume either that the Guide sub-contract was extant or the CL12 may be implied into the agreement made with Martin Sacks.

Counsel submitted that where by a contract for work and labour and supply of materials to be fitted to the premises of another the supplier agreed that for a definite period he will maintain and repair the materials, the materials do not become annexed to the freehold before the maintenance period has expired. Support for this submission was said to be found in a passage of the judgment of Blackburn J in Appleby v Myers (1867) LR 2 CP 651, at p. 659. Of the facts of the case then under appeal, his Lordship said: "as to a great part at least of the work done in this case, the materials had not become the property of the defendant; for, we think that the plaintiffs, who were to complete the whole for a fixed sum, and keep it in repair for two years, would have had a perfect right, if they thought that a portion of the engine which they had put up was too slight, to change it and substitute another in their opinion better calculated to keep in good repair during the two years, and that without consultation or asking the leave of the defendant".

However, his Lordship's remarks were made in connection with a claim under an agreement between the plaintiff and the defendant whereby the plaintiff agreed to construct certain machinery on the defendant's premises and to keep it in repair for two years. The distinguishing feature of that case was the contractual relationship between the plaintiff and the defendant, and the absence of any such relationship between the parties in the present action. Counsel's submission was expressed too widely; the statement of Blackburn J in Appleby v Myers has no application to circumstances where there is no contractual relationship between the person fitting the chattel and the owner of the freehold or person in possession. This is made clear from the judgments of the Court of Appeal in Hobson v Gorringe [1897] 1 CH 182. In that case the Court was concerned with a gas engine which had been affixed by bolts and screws to the mortgagor's land under a hire-purchase agreement made by him with the hirer. The mortgagor made default under his hire-purchase agreement, and the mortgagee entered in possession of the land. The hirer sought to restrain the mortgagee from selling the machine, claiming ownership of it, while the mortgagee claimed entitlement of the machine as a fixture. At p. 193 the Court said: "It is said that the intention that the gas engine was not to become a fixture might be got out of the hire and purchase agreement, and, if so, it never became a fixture and part of the soil, and it was said that the case of Holland v Hodgson had so decided. For this point it must be assumed that such intention is manifested by the hiring and purchase agreement, though, as before stated, we think it is not. Now, in Holland v Hodgson, Lord Blackburn, when dealing with the 'circumstances to shew intention, 'was contemplating and referring to circumstances which shewed the degree of annexation and the object of such annexation which were patent for all to see, and not to the circumstances of a chance agreement that might or might not exist between an owner of a chattel and a hirer thereof. This is made clear by the examples that Lord Blackburn alludes to shew his meaning. He takes as instances (a) blocks of stone placed in position as a dry stone wall or stacked in a builder's yard; (b) a ship's anchor affixed to the soil, whether to hold a ship riding thereto or to hold a suspension bridge. In each of these instances it will be seen that the circumstance to shew intention is the degree and object of the annexation which is in itself apparent, and thus manifested the intention. Lord Blackburn in his proposed rule was not contemplating a hire and purchase agreement between the owner of a chattel and a hirer or any other agreement unknown to either a vendee or mortgagee in fee of land, and the argument that such a consideration was to be entertained, in our judgment, is not well founded."

Similarly, Adam J in Kay's Leasing Corporation Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VR 429, at p. 433 said, in connection with the test to be applied for determining whether chattels brought on to land are fixtures, "the relevant intention is to be gathered from the circumstances which show the degree and the object of annexation, which are patent for all to see, and not, to quote the judgment of the court in Hobson v Gorringe [1897] 1 CH 182, at p. 193, 'the circumstances of a chance agreement that might or might not exist between an owner of a chattel and a hirer thereof'". In Appleby v Myers, Blackburn J added after the passage cited, "It is quite true that materials worked by one into the property of another become part of that property. This is equally true, whether it be fixed or movable property. Bricks built into a wall become part of the house; thread stitched into a coat which is under repair, or planks and nails and pitch worked into a ship under repair, become part of the coat or the ship". The learned author of Hudson on Building and Engineering Contracts, 10th ed., at p. 655 commenting on the principle so expressed by Blackburn J states: "The principle is so firm that notwithstanding an express provision to the contrary and to the contract, the builder will not be able to take advantage of it as against a third party entitled to the land."

It was also contended on behalf of the defendant that there was insufficient annexation of the chillers to cause the same to be fixtures. The chillers were connected to water pipes by means of four bolts and nuts so that there was a connection, perhaps indirect, with the building. In any event, such connection may be described as slight only. Nevertheless even slight fixing to the land is sufficient to raise the presumption that a chattel is a fixture. In those circumstances, the onus of proving otherwise rests upon the party so contending; he must do so by showing from the relevant circumstances that it was intended that the article should remain a chattel. The relevant circumstances from which the objective intention is to be inferred are those which I have already described. It follows that the defendant bore the onus of proof which it failed to discharge.

In my opinion the correct inference to be drawn from the facts of this case is that the airconditioning plants were intended to be fitted permanently to each building and therefore the same were fixtures at the time of their removal by the defendant.

Four general principles applicable to the granting of a mandatory injunction were described by Lord Upjohn, with whom the other members of the House agreed, in Redland Bricks Ltd v Morris [1970] AC 652, at pp. 665-6; [1969] 2 All ER 576, at pp. 579-80. The first and second principles, which are relevant to the present proceedings, were expressed by his Lordship in these terms: "1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. As Lord Dunedin said in 1919 it is not sufficient to say 'timeo'. [Attorney-General for the Dominion of Canada v Ritchie Contracting and Supply Co Ltd [1919] AC 999, 1005, P.C.] It is a jurisdiction to be exercised sparingly and with caution but, in the proper case, unhesitatingly.

"2. Damages will not be a sufficient or adequate remedy if such damage does happen. This is only the application of a general principle of equity; it has nothing to do with Lord Cairns' Act or Shelfer's Case [1895] 1 CH 287."

His Lordship qualified his statement of general principles pointing out, "Every case must depend essentially upon its own particular circumstances. Any general principles for its application can only be laid down in the most general terms."

If the plaintiffs were denied injunctive relief, they would be constrained to engage other contractors to supply and fit replacement parts. The present day cost of such plants and replacement would be $90,000, so that the plaintiffs would incur additional expenditure. No doubt the plaintiffs could be adequately compensated for such additional expenditure by an award of damages. However, that amount would be in addition to the sums already borrowed by the plaintiffs from Tri-Continental and the additional amount would attract interest. It is proposed to discharge the mortgages on the sale of buildings as renovated. Completion of the renovations of the buildings would be delayed as a consequence of the plaintiffs or Martin Sacks being obliged to engage a substitute for the defendant to complete the airconditioning systems. The plaintiffs' plans include the sale of the buildings by the end of May 1984. Without the airconditioning plants the sale of the buildings would have to be deferred. Any delay would prolong the duration of the mortgages with consequential continuing increases of amounts of interest to be paid thereunder.

The defendant, by seeking and obtaining an order for security for costs, recognized that the plaintiffs' financial circumstances are unsatisfactory. Delays in completing the renovations and consequential deferment of the sale of the buildings would add to the plaintiffs' indebtedness to their creditor, Tri-Continental, and their financial difficulties. It is therefore in the interests of the plaintiffs that the buildings should be completed as expeditiously as possible.

In Evans Marshall and Co Ltd v Bertola SA and Independent Sherry Importers Ltd [1973] 1 WLR 349, at p. 379; [1973] 1 All ER 992, at p. 1005 Sachs LJ, considering a plaintiff's appeal against the refusal to grant an interlocutory injunction restraining breach of a sole agency agreement, observed: "The standard question in relation to the grant of an injunction, 'Are damages an adequate remedy?', might perhaps, in the light of the authorities of recent years, be rewritten: 'Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?' ... "The courts have repeatedly recognized that there can be claims under contracts in which...it is unjust to confine a plaintiff to his damages for their breach. Great difficulty in estimating these damages is one factor that can be and has been taken into account. Another factor is the creation of certain areas of damage which cannot be taken into monetary account in a common law action for breach of contract: loss of goodwill and trade reputation are examples."

Yeldham J in Sanderson Motors (Sales) Pty Ltd v Yorkstar Motors Pty Ltd [1983] 1 NSWLR 513, at p. 516, in proceedings for a declaration and an injunction to restrain breach of a negative stipulation in a dealership agreement, adopted as the true principle, "Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?" as stated by Sachs LJ

I am satisfied that there is a strong probability that the consequences and detriments to which I have referred would accrue to the plaintiffs if a mandatory injunction were refused, and that those detriments would be grave ones. It may be that those detriments could be compensated by an award of damages. But having regard to the plaintiffs' pecuniary circumstances and the closeness to completion of the buildings, I apply the test formulated by Sachs LJ I conclude that in all the circumstances it would not be just to confine the plaintiffs to their remedy in damages. In reaching this decision I have taken into account that it is not suggested that replacement of the plants would more adversely affect the defendant than an award of damages. Moreover, Mr. Martin indicated that the defendant would prefer an obligation to restore the plants rather than an obligation to pay the plaintiffs $90,000, being the cost of supply and fitting of replacement plants.

The facts verified by the plaintiffs were not disputed by the defendant, and it was not demonstrated satisfactorily that if the action were to proceed to trial any additional facts could be adduced by the defendant which would alter the conclusions I have reached. The plaintiffs' claim for the restoration of the plants and the defendant's denial of the claim raise a question of law only. Having decided that question adversely to the defendant, it remains to consider whether the plaintiffs are entitled to the reliefs sought in the present proceedings.

The plaintiffs have satisfied the two main requirements for interlocutory relief by way of injunction set out in Allied Interstate (Qld) Pty Ltd v Barnes (1968) 118 CLR 581, at pp. 622-3: first, if at the trial of the action the evidence remains the same as in these proceedings, the plaintiffs would be entitled to the mandatory injunction they seek, and secondly, the inconvenience and detriment which the plaintiffs would be likely to suffer if an injunction were denied would outweigh any injury, inconvenience, or detriment which the defendant would suffer if an injunction were granted. In view of the facts and matters to which I have referred, and those considerations, I would exercise my discretion by granting the interlocutory injunction sought.

However, having decided the question of law adversely to it, the defendant has failed to show that it has any defence to the action on the merits. It follows that the plaintiffs have established their entitlement to leave to enter final judgment against the defendant. Because the reliefs claimed in the present summons by the plaintiffs include an injunction, the provisions of Rules of the Supreme Court, O.54, r15(1)(b), preclude a master from hearing and determining the present application for final judgment. It follows that the plaintiffs do not require special leave as sought by its summons. Quite apart from the limitation of jurisdiction imposed by the rule, it was appropriate in the circumstances of the present case that applications for an interlocutory injunction and for leave to enter final judgment should be heard and determined together. Whether the plants are fixtures are common and fundamental questions to both proceedings: therefore, if it were necessary to do so, I would have granted the plaintiffs special leave under O.54, r17(c).

For the foregoing reasons, there will be leave to the plaintiffs to enter final judgment.