Benwine v Jabetin; Jabetin v Liqour Adminsitration

[2004] NSWSC 995

CITATION:	Benwine v Jabetin; Jabetin v Liqour Adminsitration [2004] NSWSC 995
HEARING DATE(S):	11/10/04
JUDGMENT DATE:	1 November 2004
JUDGMENT OF:	Gzell J
DECISION:	Judicial review of Board's approval dismissed. Declaration made that remaining poker machine entitlements at end of lease will be held in trust for lessee.
CATCHWORDS:	LIQUOR LAW - Licensing - Liquor Administration Board - Poker Machine Entitlements - Board's Approval of Transfer - Whether Board erred in finding that hotel owner had no financial interest in the hotelier's licence - Whether financial interests exhaustibely defined - Whether entitlements a species of property separate from the hotelier's licence - Whether hotel owner will hold any remaining poker machine entitlements on expiry or earlier determination of lease of hotel on a resulting or constructive trust for the current lessee
LEGISLATION CITED:	Gaming Machines Act 2001 Gaming Machines Amendment Act 2002 Conveyancing Act 1919 Supreme Court Act 1970
CASES CITED:	Mellor v Liquor Administration Board [2003] NSWSC 38 Wonall Pty Ltd v Clarence Property Corporation Ltd (2003) 58 NSWLR 23 Craig v South Australia (1994-1995) 184 CLR 163 Hart v Bell, unreported, NSWCA, 6 November 1992 Mark v Green (1984) 1 NSWLR 148 at 151 Cross v McHugh (1974) 1 NSWLR 500 O'Sullivan v Farrer (1989) 168 CLR 210 O'Sullivan v Watson (1986) 7 NSWLR 693 YZ Finance Co Pty Ltd v Cummings (1963-1964) 109 CLR 395 Dilworth v Commissioner of Stamps [1899] AC 99 Federal Commissioner of Taxation v Murry (1998) 193 CLR 605 Calverley v Green (1984) 155 CLR 242 Muschinski v Dodds (1984-1985) 160 CLR 583 Nelson v Nelson (1995) 184 CLR 538 The Queen v Toohey Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327 National Provincial Bank Ltd v Ainsworth [1965] AC 1175 Halwood Corporation Ltd v Chief Commissioner of Stamp Duties (1994) 33 NSWLR 395 Naval, Military and Airforce Club of South Australia Inc v Commissioner of Taxation (1994) 51 FCR 154 Ex parte Berry, Re Kessell (1936) SR (NSW) 485 Baungartner v Baungartner (1987) 164 CLR 137
PARTIES :	Benwine Pty Ltd - Plaintiff in Proceedings 1592/04 and 2nd Defendant in Proceedings 5487/04 Jabetin Pty Ltd - 1st Defendant in Proceedings 1592/04 and Plaintiff in Proceedings 5487/04 Liquor Administration Board NSW - 2nd Defendant in Proceedings 1592/04 and 1st Defendant in Proceedings 5487/04 Allan Jackson - 3rd Defendant in Proceedings 5487/04 Fanted Pty Ltd - 4th Defendant in Proceedings 5487/04
FILE NUMBER(S):	SC 1592/04; 5487/04
COUNSEL:	Mr T F Bathurst QC/ A Hatzis - Plaintiff in Proceedings 1592/04 and 2nd Defendant in Proceedings 5487/04 Mr D P F Officer QC/ Mr J B Costigan / Mr N Murray - Defendant in Proceedings 1592/04 and Plaintiff in Proceedings 5487/04
SOLICITORS:	Deutsch Partners Lawyers Pty Ltd Turnbull Hill Lawyers Crown Solicitors Office - Submitting appearance

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 1 NOVEMBER 2004

1592/04 BENWINE PTY LTD v JABETIN PTY LTD
5487/04 JABETIN PTY LTD v LIQUOR ADMINISTRATION BOARD & ORS

Introduction

1 Two proceedings were heard together, the evidence in one being treated as evidence in the other. Jabetin Pty Ltd leased the Prince of Wales Hotel in Muswellbrook to Benwine Pty Ltd. Benwine held the hotelier’s licence in respect of the premises. 15 poker machine entitlements were allocated in respect of the licence. Benwine sought the approval of the Liquor Administration Board to transfer a block of three entitlements. The Board indicated its approval of the transfer. Jabetin sought a declaration that the Board erred in so doing. Benwine sought declarations that Jabetin had no interest in the entitlements, that to hinder transfer was a breach of an implied obligation to act in good faith and that, on the expiry or earlier determination of the lease, Jabetin would hold any remaining entitlements on trust for Benwine.

Background

2 Jiweni Pty Ltd was the predecessor in title to Jabetin. Jiewni agreed to sell to Benwine the business, goodwill and furniture of the hotel in accordance with an inventory and to transfer its interest in the hotelier’s licence. The inventory included nine poker machines. By 19 April 2001, 15 poker machines were authorised to be kept in the hotel. The cost of their acquisition and upkeep was met by Benwine.

3 Nicholas Sakno, a director of Jabetin, asserted that Jabetin had indirectly funded the acquisition of some of the poker machines by agreeing to rent reductions. Objection was taken to this evidence on the ground of relevance. I was invited to reserve my decision on its admissibility. The evidence was not put forward in the challenge to the Board’s determination. It has some relevance to the question whether any remaining entitlements upon the expiry or earlier determination of the lease are held in trust for Benwine. I allow the evidence.

The Legislation

4 In 2001, the New South Wales government froze the number of gaming machines that could be acquired, kept in a hotel or used or operated in a hotel. Poker machine entitlements were issued with respect to the number of poker machines a hotel was entitled to keep at the date of the freeze. The history of the introduction of the legislation is set out in the judgments of Whealy J in Mellor v Liquor Administration Board [2003] NSWSC 38 and Campbell J in Wonall Pty Ltd v Clarence Property Corporation Ltd (2003) 58 NSWLR 23. It is unnecessary for me to repeat those matters.

5 The Gaming Machines Act 2001, s 19(2)(a) provided that a transfer of poker machine entitlements did not have any effect unless the transfer was approved by the Board. Section 19(3)(c) required the Board to be satisfied that the transfer was supported by persons with financial interests in the hotelier’s licence. It was in the following terms:

“An application for the Board’s approval of the transfer of a poker machine entitlement must:
…
(c) in the case of an application for the transfer of an entitlement allocated in respect of a hotelier’s licence - demonstrate, to the satisfaction of the Board, that the proposed transfer is supported by each person who, in the opinion of the Board, has a financial interest in the hotelier’s licence, and
….”

6 The Gaming Machines Act 2001, s 19(5) expanded upon what was a financial interest in a hotelier’s licence for the purpose of s 19(3)(c). It provided:

“For the purposes of subsection (3)(c), a person is taken to have a financial interest in a hotelier’s licence if the person is entitled to receive any income derived from the business carried on under the authority of the licence or any other financial benefit or financial advantage from the carrying on of the business (whether the entitlement arises at law or in equity or otherwise).”

7 The Gaming Machines Amendment Act 2002 introduced s 19(6) to the Act. It limited the persons having a financial interest in a hotelier’s licence. It provided:

“However, a person is not, for the purposes of subsection (3)(c), to be considered as having a financial interest in a hotelier’s licence by reason only of the person being the owner of the hotel.”

8 The Board concluded that Jabetin did not have a financial interest in the hotelier’s licence.

The lease

9 Clause 3.1(19) of the lease incorporated the covenant in the Conveyancing Act 1919, Sch 4 that the lessee would, during the continuance of the lease, apply for and endeavour to obtain at its own expense all such licences as were or might be necessary for carrying on the trade or business of a licensed victualler or hotelkeeper in and upon the demised premises and keeping the buildings open as and for a hotel. Clause 6(o) contained a covenant by Benwine to inform Jabetin should it receive any legal process relating to the premises or to the hotelier’s licence. It was agreed that Jabetin would be entitled to appear on behalf of Benwine and conduct the proceedings. Clause 6(w) was a covenant by Benwine not to use the premises for any purpose other than a hotel, restaurant, motel or other like use. Clause 6(y) required Benwine to carry out any non-structural alterations, improvements or additions ordered by the Licensing Court or body with like jurisdiction. Clause 6(aa) required Benwine to carry on the business of hoteliers in an orderly manner and not to do anything that might result in the forfeiture or avoidance of the hotelier’s licence. By clause 10(c) Benwine irrevocably appointed Jabetin its attorney upon the ending of the lease either by affluxion of time or otherwise to apply for a transfer of the hotelier’s licence.

The determination

10 The Board member stated the issue for determination as whether the Board was of the opinion that Benwine’s lessor, Jabetin, had a financial interest in the Prince of Wales hotel licence within the meaning of the Gaming Machines Act 2001, s 19(3)(c). If of the opinion that Jabetin had a financial interest, the Board stated that it had to be satisfied that Jabetin supported the proposed transfer. It noted that Jabetin did not support the transfer. The Board went on to say that if it was not of the opinion that Jabetin had the requisite financial interest, it might proceed to approve the proposed transfer irrespective of whether or not Jabetin supported it.

11 There followed a recitation of provisions of the Act. Under a heading “Background”, the Board made mention of the provisions in the lease set out above. The Board commented:

“The lease contains no express reference to poker machine entitlements or to any entitlement, concession or authority dealing with the right to keep, use and operate poker machines.”

12 The Board noted that the rent payable under the lease was a set amount per annum that did not fluctuate by reference to the quantity of liquor sold, gaming turnover or performance of Benwine’s business. Having noticed that the Board was required to allocate to a hotel one poker machine entitlement for each approved poker machine that comprised the frozen number of approved poker machines for the hotel, the Board said:

“Apart from s 15 of the Gaming Machines Act 2001, the Act is otherwise silent on who is to take the beneficial ownership of any poker machine entitlements required to be allocated to a hotel.”

13 Having noted that poker machine entitlements were allocated in respect of a hotelier’s licence and a certificate issued specifying what, if any, entitlements applied to the hotel, the Board commented:

“Other than for those provisions the Act is otherwise silent as to who ownership of the entitlement vests in.”

14 Having pointed out that if a hotel wished to utilise a poker machine entitlement by obtaining an authorisation to keep an approved gaming machine in respect of the entitlement, the hotelier was the appropriate applicant for such authorisation and the same requirement applied if a hotel wished to dispose of an approved gaming machine, the Board went on to say:

“The only other way poker machine entitlements may be “used” is by seeking to transfer them to another hotel.”

15 Having noted that there was no dispute that Benwine was solely responsible for obtaining the 15 poker machines, the Board discussed the consequence under the Gaming Machines Act 2001 if it sought to acquire 15 poker machines in the absence of entitlements and the retention of a Social Impact Assessment threshold of 15 gaming machines if Benwine was granted approval to transfer all 15 entitlements. The Board concluded its enunciation of background material thus:

“Against that background of the legislative scheme does Jabetin have a financial interest in the hotelier’s licence and, if it does, can it effectively prevent the proposed transfer of poker machine entitlements notwithstanding that it was not instrumental in any way to those entitlements being allocated in respect of the hotel. It is also relevant to note that at the time the lease was entered into neither party, nor indeed the hotel industry generally, would have envisaged that poker machines would be subsequently permitted to be operated in hotels and still later valuable transferable entitlements would be allocated in respect of any operating poker machines.”

16 Under the heading “Section 19(5) Definition” the Board noted:

“The parties agree that s 19(5) provides an exhaustive definition of when a person will have a financial interest in a hotel licence.”

17 The Board noted Jabetin’s submission that the carrying on of the business by Benwine had the effect of increasing goodwill or the value of the premises and thus resulted in Jabetin receiving a financial benefit or financial advantage. It noted Benwine’s submission that whilst it could be argued that, commercially, the carrying on of business increased goodwill and the value of the premises and resulted in Jabetin receiving a financial benefit or financial advantage, the Gaming Machines Act 2001, s 19(5) looked to Jabetin’s entitlement to receive the benefit or advantage and present or future accretion to goodwill or the value of the premises could not be said to be a benefit or advantage to which Jabetin was entitled.

18 The Board accepted Benwine’s submission and concluded that Jabetin was not entitled to receive any financial benefit or financial advantage from the carrying on of the business on account of any accretion to goodwill or the value of the premises.

19 In its written submissions to the Board, Jabetin had stated:

“2.2 DOES SECTION 19(5) PROVIDE AN EXHAUSTIVE DEFINITION OF WHEN A PERSON WILL HAVE A FINANCIAL INTEREST IN A HOTEL LICENCE?
The objector agrees with the applicant that the breadth of Section 19(5) of the Gaming Machines Act 2001 in the context of a qualified and constrained general expression is manifestly indicative of a legislative intent to comprehensive define when a person will be held to hold a “financial interest in a hotelier’ licence”.”

20 Paragraph 2.3 of the submissions was entitled:

“IF SECTION 19(5) PROVIDES AN EXHAUSTIVE DEFINITION – DOES JABETIN HAVE A FINANCIAL INTEREST IN THE LICENCE WITHIN THE MEANING OF SECTION 19(5)?”

21 The next paragraph was entitled:

“2.4 IF SECTION 19(5) DOES NOT PROVIDE AN EXHAUSTIVE DEFINITION – DOES JABETIN HAVE A FINANCIAL INTEREST IN THE LICENCE – WITHIN THE MEANING OF SECTION 19(3)(C) OF THE GAMING MACHINES ACT 2001?”

22 The Board said it was at a loss to understand paragraph 2.4 of Jabetin’s submissions, given the fact that it expressly conceded that the Gaming Machines Act 2001, s 19(5) provided an exhaustive definition of what constituted a financial interest in the licence.

23 The Board quoted what had been said by Campbell J in Wonall at [52] that the lease there in question contained no positive right enabling the lessee to sell poker machine entitlements. The plaintiffs had submitted that all they were required to give back at the end of the lease was the premises. The poker machines being theirs, they were entitled to take them away at the end of the lease. The plaintiffs had submitted that in those circumstances it was inconsistent with the scheme of the lease for them not also to be entitled to take way the poker machine entitlements. Campbell J took the view, however, that the lease was simply silent on the topic and no implication could be made in it that the lessee was entitled to deal in any particular way with poker machine entitlements. The matter depended upon the provisions of the Gaming Machines Act 2001.

24 The Board agreed with that view and reiterated its satisfaction that Jabetin did not have the requisite financial interest and, accordingly, Benwine did not need its support to the application. The Board concluded its determination with the following observation:

“In support of that conclusion it is relevant to examine what would be the position if after 2 April 2002 Benwine had at its cost transferred poker machine entitlements to the hotel and before the expiry of the lease then sought to transfer those entitlements to another hotel. If Jabetin’s submissions are to be accepted it would prevent such a course of action. I do not accept that is the intention of the legislation.”

Irrelevant Considerations?

25 Jabetin submitted that the passages from the determination set out above demonstrated that the Board had misdirected itself by considering rights or interests in poker machine entitlements rather than financial interests in the hotelier’s licence. Thus, the Board’s statement that the lease contained no express reference to poker machine entitlements was challenged as an irrelevant consideration. So was the observation that the Gaming Machines Act 2001 was silent on the question. The Board’s reference to the only use of entitlements other than obtaining authorisations to acquire gaming machines being to seek their transfer to another hotel was challenged. So was the question whether Jabetin could effectively prevent the proposed transfer of entitlements notwithstanding that it was not instrumental in any way in having the entitlements allocated to the hotel.

26 Jabetin sought an order in the nature of certiorari under the Supreme Court Act 1970, s 69. To be entitled to such relief, Jabetin must establish jurisdictional error on the part of the Board (Craig v South Australia (1994-1995) 184 CLR 163 at 175-176).

27 As Campbell J pointed out in Wonall at [54] it is to the Board that the Parliament has entrusted the decision making process both of deciding who has a financial interest in the hotelier’s licence and whether it is satisfied that each such person supports the application for a transfer. His Honour was asked to declare that a hotel owner had no financial interest in a hotelier’s licence held by its lessee for the purpose of the Gaming Machines Act 2001, s 19(3)(c) before the Board had considered the matter. He declined to do so.

28 As Kirby P observed in Hart v Bell, unreported, NSWCA, 6 November 1992, judicial review is limited to errors in law, the Court will give appropriate respect to the exercise of jurisdiction by a specialist administrative body allowing a proper leeway for the exercise of the administrator’s powers as he or she thinks fit (Mark v Green (1984) 1 NSWLR 148 at 151) and the Court will not approach its functions with a view to combing through the reasons of the administrative body in a way that it is artificial, unduly technical or excessively hypercritical (Cross v McHugh (1974) 1 NSWLR 500 at 503).

29 The Board enunciated the correct question for its determination. In considering background information, reference was made to the obvious, that the lease made no mention of poker machine entitlements since it pre-dated the Gaming Machines Act 2001. Reference was made to the silence of the Act as to the ownership of entitlements. Reference was also made to the acquisition of the 15 entitlements and Benwine’s expenditure on the poker machines that gave rise to them. The question was raised whether Jabetin could prevent the transfer of the entitlements notwithstanding its non-involvement in the acquisition of the poker machines. Those were background facts that the Board was entitled to review. Its determination was not to be made in a vacuum. And while reference was made more than once to some of those issues, it has not been demonstrated, in my view, that those considerations diverted the Board from the formation of the opinion enunciated at the beginning of its determination.

30 The Board analysed submissions on both sides and concluded that Jabetin was not entitled to receive any financial benefit or financial advantage from the carrying on of the business on account of any accretion to goodwill or the value of the premises. Having formed the opinion that Jabetin was not entitled to any financial benefit or financial advantage from carrying on the business and in light of the agreement of the parties that the Gaming Machines Act 2001, s 19(5) was an exhaustive definition of financial interest for the purpose of s 19(3)(c), the Board concluded that Jabetin lacked the necessary financial interest for the purpose of that provision. That line of reasoning does not exhibit any fixation upon irrelevant considerations with respect to poker machine entitlements.

31 Nor, in my view, did the subsequent reference to a hypothetical acquisition and application for approval of transfer of poker machine entitlements divert the Board from proper considerations. It was entitled to test the construction it had reached by an anomalous example. If the construction contended for by Jabetin produced an anomalous result, it was more likely that the construction to which the Board had arrived was correct. Avoiding an anomaly is a guide to construction (O’Sullivan v Farrer (1989) 168 CLR 210 at 222).

32 I reject the submission that the Board misdirected itself by confusing interests in poker machine entitlements with interests in the hotelier’s licence.

The Concession

33 It was submitted by Jabetin that no concession that the Gaming Machines Act 2001, s 19(5) contained an exhaustive definition was made and, if it was, the concession was withdrawn.

34 Jabetin’s written submissions to the Board contained a concession to this effect. Benwine’s submissions in reply reiterated the concession. The inclusion of paragraph 2.4 in the written submissions to the Board did not alter the fact that a clear concession was made.

35 Benwine objected to the withdrawal of the concession. It relied on O’Sullivan v Watson (1986) 7 NSWLR 693 at 703. However, the principle stated by McHugh JA was that where a party contended for or acquiesced in the application of an erroneous proposition of law, that conduct would generally preclude the party from relying on that point in an appeal if the point could have been cured at the trial. There no objection was taken at trial to evidence as a result of the concession. No such situation arises in the instant circumstances. I allow Jabetin to withdraw its concession.

Is the definition exhaustive?

36 Jabetin submitted that the word “taken” in the Gaming Machines Act 2001, s 19(5) was equivalent to the word “deemed” and that word was often used to mean “includes” which was used to enlarge the ordinary meaning. But “includes” is an innominate term that takes its meaning from the context in which it is used.

37 In YZ Finance Co Pty Ltd v Cummings (1963-1964) 109 CLR 395 the High Court considered a provision of the Money-lenders and Infants Loans Act, 1941-1961 that provided that a security “included” bill of sale, mortgage, lien, and charge of any real or personal property, and any assignment, conveyance, transfer or dealing with any real or personal property to secure the repayment of any loan. It was held to be an exhaustive definition. At 398-399, McTiernan J quoted with approval what Lord Watson said in delivering the opinion of the Privy Council in Dilworth v Commissioner of Stamps [1899] AC 99 at 105-106 about the word “include” being susceptible of being imperative:

“The word “include” is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word “include” is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to “mean and include,” and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.”

38 To like effect was the judgment of Kitto J in YZ Finance at 401-402:

“Unlike the verb “means”, “includes” has no exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject. Whether its object is the whole of its subject is a question of the true construction of the entire provision in which the word appears.”

39 In Wonall at [56] Campbell J said that the Gaming Machines Act 2001, s 19(5) did not purport to state exhaustively the circumstances in which the Board must conclude that a person had a financial interest in a hotelier’s licence. That remark was, however, made in passing. His Honour was not called upon to decide the issue.

40 Jabetin also relied upon the Second Reading Speech upon the introduction of the Gaming Machines Act 2001. The Minister for Gaming and Racing said that the consent of the licence owner was required to a transfer of entitlements:

“It is not proposed to confer ownership rights through the legislation. Entitlements will be issued in respect of a particular hotel licence … In the case of a hotel, the licensee will be permitted to apply for the transfer of entitlements to another licence, provided the licensee can satisfy the Board that the licence owner has consented.”

41 Jabetin submitted that the reference to “licence owner” should be a read as a reference to “hotel owner” in the sense of the person who owned the hotel. But that substitution is not, by any means, apparent. Furthermore, in the Gaming Machines Act 2001, Sch 1, cl 8(1) the term “hotel owner” was defined to mean a person who owned the business conducted under the authority of a hotelier’s licence. If there is any ambiguity in s 19(5), it is exacerbated by reference to the Second Reading Speech.

42 Besides, if the consent of a hotel owner, in the sense of the owner of the premises, was required to an application for transfer of entitlements, that would be contrary to the legislative intent manifested by the exclusion from financial interest in a hotelier’s licence of the hotel owner in the Gaming Machines Act 2001, s 19(6).

43 The Gaming Machines Act 2001, s 19(5) referred to broad categories of financial interest in a hotelier’s licence: the entitlement to receive income from the business carried on under the licence, or the entitlement to receive any other financial benefit or financial advantage from the carrying on of the business. It is difficult to imagine any financial interest in a hotelier’s licence to which s 19(3)(c) might apply that is not encompassed in the categories in s 19(5). One would not normally regard security interests as financial interests in the licence. The very width of the categories takes s 19(5) out of that sort of provision that enlarges upon the ordinary meaning of a term. That width suggests that its purpose was, exhaustively, to define financial interest in a hotelier’s licence for the purpose of s 19(3)(c). That intention is enforced, in my view, by the exclusion in s 19(6). Together they constitute a code.

44 The expression “financial interest in the hotelier’s licence” in the Gaming Machines Act 2001, s 19(3)(c) is one of wide import. That s 19(5) referred to specific categories, also of wide import, and s 19(6) excluded a specific category, suggests that the word “taken” in s 19(5) was not intended to add further categories to those included in the natural meaning of a financial interest but, rather, was intended to define what were financial interests for the purpose of s 19(3)(c).

45 Jabetin submitted that if the Gaming Machines Act 2001, s 19(5) contained an exhaustive definition, there was no discretion to be exercised by the Board under s 19(3)(c). I reject that submission. The Board is to form an opinion as to whether a person has a financial interest in a hotelier’s licence. The fact that the financial interest is defined does not exclude the need for the Board to form an opinion. It must look to the definition in s 19(5) and determine who, in its view, falls within its terms.

46 In my view the concession before the Board was properly made and, in acting upon it, the Board did not misdirect itself in law.

Did Jabetin have a Financial Interest in terms of s 19(5)?

47 Jabetin submitted that it had the entitlement to protect the goodwill of the business of the hotel and that constituted a financial benefit or financial advantage from the carrying on of the business. Jabetin pointed to the covenants in the lease requiring Benwine to apply to renew the hotelier’s licence from time to time, to inform it of any legal proceedings relating to the licence and appointing it attorney to defend any proceeding, restricting the use of the premises for the business of a hotelier, requiring it to carry out non-structural works required by the appropriate authority, requiring it not to do anything that might result in forfeiture or avoidance of the licence and entitling Jabetin upon the expiry or earlier determination of the lease to apply for a transfer of the licence and being appointed Benwine’s attorney for that purpose. It was submitted that these rights constituted a financial benefit or financial advantage to which Jabetin was entitled. It was submitted that the covenants in the lease excluded Jabetin from mere ownership of the hotel and took it outside the exclusion in the Gaming Machines Act 2001, s 19(6).

48 In Wonall at [57], having referred to the exclusion in the Gaming Machines Act 2001, s 19(6), Campbell J went on to say it was for the Board to determine whether similar provisions in the lease there in question gave the lessor a financial interest in the hotelier’s licence:

“However, if a person is the owner of a hotel, and as well has some other connection with the hotel licence, it might in some circumstances be appropriate for the Board to decide that that person had a financial interest in the hotelier’s licence. In the present case, the defendant points to various connections that the lessor has with the hotelier’s licence, beyond owning the premises – the lessor has the benefit of the covenant in cl 14.1 of the lease, the benefit of the covenant in cl 14.10 of the lease, the benefit of the covenant in cl 14.13 of the lease, a right under cl 14.15 of the lease to terminate the lease early if the hotelier’s licence is (in broad terms) cancelled or subject to certain identified risks of cancellation or forfeiture, the power of attorney enabling transfer of the licence in certain circumstances under cl 14.16, and the right to receive the licence back at the end of the term under cl 21. Within the statutory framework, it is matter for the Board and not for this Court, to decide whether these matters, or any others which the lessor might point to, enable the Board to form an opinion that the lessor has a financial interest in the hotelier’s licence.”

49 His Honour did not decide that such provisions in a lease constitute a financial interest in the hotelier’s licence. That was a matter for the Board. Furthermore, his Honour’s remarks were directed to the question whether the Gaming Machines Act 2001, s 19(6) was excluded by the presence of such covenants in the lease.

50 The goodwill of the business was the legal right or privilege to conduct the business in substantially the same manner and by substantially the same means that had attracted custom to it. It did not inhere in the assets of the business (Federal Commissioner of Taxation v Murry (1998) 193 CLR 605). Here, the goodwill arose from Benwine’s conduct of business under the hotelier’s licence. Benwine paid for goodwill and its conduct of the business, no doubt, generated further goodwill. Jabetin had no interest in that goodwill.

51 Jabetin had the entitlement to enforce the covenants in the lease. But those are not the entitlements to which the Gaming Machines Act 2001, s 19(5) was directed. Its categories were entitlements to benefits derived from the carrying on of the business. Jabetin had no entitlements with respect to Benwine’s carrying on of business. Jabetin was confined to receipt of periodic rent and enforcement of rights under the lease in certain circumstances. When the lease came to an end, Jabetin had the right to a transfer of the hotelier’s licence. If that happened, it gained an entitlement to benefit from the carrying on of a business. But until that happened, it had no interest in Benwine’s business.

52 That was the view taken by the Board. In my view no error is demonstrated in that approach.

First Conclusion

53 In my judgment, Jabetin’s application for review fails, its summons should be dismissed and the matter should be remitted to the Board for it to consider whether it should grant formal approval to the transfer. I will hear the parties on costs.

54 So far as Benwine’s proceedings are concerned, it is entitled to a declaration that it had a right to transfer the entitlements because, as was found by the Board, Jabetin had no financial interest in the hotelier’s licence. It is unnecessary for me to consider the arguments in the alternative if Jabetin had a financial interest in the licence.

Entitlements Remaining at End of Lease

55 If there are poker machine entitlements that remain allocated in respect of the hotelier’s licence at the expiry or earlier determination of the lease because, for example, of the timing restrictions upon transfer in the Gaming Machines Act 2001, the question remains to whose benefit those entitlements should be.

56 Benwine submitted that the entitlements would be held by Jabetin on a resulting trust for it because it expended all moneys on their acquisition. Jabetin submitted that there was no purchase of the entitlements and no resulting trust arose. Benwine submitted that the purchase of the poker machines that led to the allocation of the poker machine entitlements was tantamount to the purchase of the entitlements.

57 It is true that the discussion of the resulting trust in Calverley v Green (1984) 155 CLR 242 at 246, 266, Muschinski v Dodds (1984-1985) 160 CLR 583 at 589, 612, Nelson v Nelson (1995) 184 CLR 538 at 600 state the principle in terms of a person who has paid the purchase price of property. I doubt, however, that the underlying principle is excluded in the circumstances of this case where, while the entitlements were not purchased by Benwine, it purchased the poker machines which alone gave rise to the allocation of the entitlements in relation to the hotelier’s licence.

58 Jabetin further submitted that the poker machine entitlements were not a species of property that could be dealt with separately from the hotelier’s licence and on that basis there could be no resulting trust with respect to them.

59 Whether or not poker machine entitlements are a species of property, dealings with respect to them can be made separately from the hotelier’s licence, contrary to the submission. The Gaming Machines Act 2001, s 19(1) provided that a poker machine entitlement was transferable. Section 19(4) provided that if transferred to another hotelier’s licence, it should be taken to have been allocated in respect of the other hotelier’s licence. Such a dealing is constituted separately from either hotelier’s licence. Section 23(1) provided that if a hotelier’s licence was surrendered or cancelled, any poker machine entitlements allocated in respect of the licence could be transferred. Such a transfer is independent of the hotelier’s licence.

60 To be capable of transfer, contractual rights must be capable of existing with respect to poker machine entitlements. If contractual rights may exist, why should not equitable interests be capable of creation with respect to entitlements?

61 Campbell J pointed out in Wonall at [31] that the Gaming Machines Act did not say that poker machine entitlements belonged to or were the property of anyone. Rather it linked the new species of legal entity to the hotelier’s licence. At [41], Campbell J observed that the allocation of the poker machine entitlements in respect of the hotelier’s licence said no more than that there was to be a link or connection between the entitlement and the licence. In the Second Reading Speech the Minister said it was not proposed to confer ownership rights through the legislation. That does not mean, however, that the new legal entity cannot be property.

62 In The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 342 Mason J cited with approval the observation of Lord Wilberforce in National Provincial Bank Ltd v Ainsworth [1965] AC 1175 at 1247-1248 of the qualities of property:

“Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.”

63 In my view, a poker machine entitlement exhibits these characteristics. It has a clear identity, is recognisable by third parties, is transferable to third parties and has a degree of permanence.

64 In Halwood Corporation Ltd v Chief Commissioner of Stamp Duties (1994) 33 NSWLR 395 it was held that “transferable floor space” constituted property for the purposes of the Stamp Duties Act 1920. A local authority that controlled high-rise building development in its area by prescribing floor space ratios to site area, and mindful of the cost of restoration of historic buildings, compared the actual floor space of a historic building with the potential floor space of a development on the site and granted to the owner “transferable floor space”. The authority kept a register of such transferable floor space. The register conferred exclusive entitlement to the use of the floor space when the owner made a development application to the authority. The transferable floor space could be bought and sold and specific performance awarded to enforce the sale of it. (See, also, Naval, Military and Airforce Club of South Australia Inc v Commissioner of Taxation (1994) 51 FCR 154).

65 Like transferable floor space, poker machine entitlements are controlled by the Board, are a necessary prerequisite to obtaining the authorisation of the Board to keep an approved gaming machine in a hotel, can be bought and sold and the sale can be specifically enforced.

66 A poker machine entitlement is much like a hotelier’s licence. The attributes of the latter were considered by Jordan CJ in Ex parte Berry, Re Kessell (1936) 36 SR (NSW) 485. At 488 his Honour observed that the licence permitted the doing of the acts subject to certain conditions prescribed in the licence and it restricted the doing of the permitted acts to a specified place. His Honour went on to say that it constituted property:

“The right constituted by the licence may be regarded as a right of property in the sense that it has, or in a particular case may have, a substantial pecuniary or material value as contrasted with a moral, social or political value.”

67 At 492, his Honour observed that parties might enforce any trusts or obtain remedies for any breaches of contract with respect to hotelier’s licences in the ordinary courts.

Second Conclusion

68 In my view the new legal entity of the poker machine entitlement created under the Gaming Machines Act 2001 is a species of property separate and distinct from the hotelier’s licence in which contractual rights and equitable interests may be created. In my view, remedies for their breach are matters within the province of the ordinary courts and not the Board. I am of the view that a resulting trust may exist with respect to a poker machine entitlement and that Benwine’s purchase of the poker machines that gave rise to the poker machine entitlements will constitute a resulting trust in its favour with respect to any of the 15 poker machine entitlements held with respect to the hotelier’s licence upon the expiry or earlier determination of the lease from Jabetin.

69 If I be wrong in this view, a constructive trust will arise in favour of Benwine if any of the 15 poker machine entitlements remain allocated with respect to the hotelier’s licence upon the expiry or earlier determination of the lease. In terms of Muschinski at 615-616 and Baumgartner v Baumgartner (1987) 164 CLR 137 at 147 it would be unconscionable for Jabetin not to recognise the existence of an equitable interest in the favour of Benwine. The unconscionability will arise by the reason of the sole contribution by Benwine to the acquisition and maintenance of the poker machines that gave rise to the poker machine entitlements.

70 I reject the suggestion of Mr Sakno that Jabetin made a financial contribution to the acquisition and maintenance of the poker machines by granting rent relief from time to time. That is too indirect an advantage to constitute financial contribution to the acquisition of the poker machines. No doubt the rent reductions were influenced by commercial considerations in the long-term interests of Jabetin as well as the short-term interests of Benwine.

71 I will make a declaration that upon the expiry or earlier determination of the lease, Jabetin will hold any of the 15 poker machine entitlements remaining allocated with respect to the hotelier’s licence on trust for Benwine.

72 I will hear the parties on the appropriate terms of the declarations and the terms of any appropriate orders in support of them. I will hear the parties on costs. I direct the parties to bring in short minutes of orders reflecting these reasons.

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Last Modified: 11/03/2004