Reported Decision: (2007) NSW Conv R 56-182(2007) Aust Contract Reports 90-256 Appeal Outcome: Special leave refused with costs by the High Court - 15 June 2007
New South Wales
Court of Appeal
CITATION: Boreland v Docker & Ors [2007] NSWCA 94 HEARING DATE(S): 13 March 2007
JUDGMENT DATE:
24 April 2007JUDGMENT OF: Mason P at 1; Beazley JA at 2; Ipp JA at 137 DECISION: 1. Allow the appeal in part;; 2. Set aside Orders 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11;; 3. Vary the declaration made in Order 5 so as to provide that the appellant is obliged upon the determination of the lease to transfer the poker machine entitlements to the respondents;; 4. Declare that by letters between the appellant and the respondents dated 12 May 2005 and 12 September 2005, the lease entered into by the parties on 1 August 2003 was varied so as to provide for a fixed term ending on 31 August 2007;; 5. Liberty to the respondents to apply for injunctive relief, either on an interlocutory or final basis;; 6. Direct the appellant and respondents to file within seven days agreed minutes of order in respect of the costs orders to be made both at first instance and on the appeal. If there is no agreement, then within 14 days of today’s date the appellant and respondents are to file written submissions in respect of costs. CATCHWORDS: Contract – lease – offer and acceptance – ambiguity in terms of offer – use of surrounding circumstances – use of pre-contractual conversations - Contract – lease – offer and acceptance – deviation from offer – whether deviation for sole benefit of offeror - Contract – lease – variation - offer and acceptance – construction of offer – offer must correspond with acceptance – whether trial judge erred in construction of offer - Liquor Law – poker machine entitlements – entitlements attach to hotelier’s licence – transfer of poker machine entitlements must accord with Gaming Machines Act 2001 (NSW) - Liquor Law – poker machine entitlements as a species of property – rights to poker machine entitlements – as respondents not holders of hotelier’s licence rights only created by contract or trust - Liquor Law – hotelier’s licence not property – no beneficial ownership in hotelier’s licence LEGISLATION CITED: Conveyancing Act 1919 (NSW) ss 23C, 23D
Gaming Machines Act 2001 (NSW) ss 15, 15(2), 19, 19(1), 19(2), 19(3), 19(5), 19(6), 20
Liquor Act 1982 (NSW) ss 18, 18(2)(a)
Real Property Act 1900 (NSW)CASES CITED: Brambles Holdings Ltd v Bathurst City Council (2001) 55 NSWLR 153; [2001] NSWCA 61
BP Refinery (Westernport) Pty Limited v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266; [1997] HCA 40
Carter v Hyde (1923) 33 CLR 115
Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24
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- AGLC
- Boreland v Docker [2007] NSWCA 94
- Case
- [2007] NSWCA 94
- Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between Boreland (the appellant) and Docker (the respondents) arising from a lease agreement. The primary issue revolved around the interpretation of the lease terms, particularly concerning the transfer of poker machine entitlements upon the determination of the lease. The case was heard in the Court of Appeal of New South Wales.
The court was required to determine whether the lease agreement, as initially formed and subsequently varied, obligated the appellant to transfer poker machine entitlements to the respondents. This involved considering whether there was a valid offer and acceptance of the lease terms, whether any deviations from the offer were for the sole benefit of the offeror, and how the relevant provisions of the *Gaming Machines Act 2001* (NSW) impacted the rights to these entitlements. The court also had to consider whether the hotelier's licence itself constituted property.
The Court of Appeal found that the lease had been varied by subsequent correspondence, establishing a fixed term ending on 31 August 2007. It held that the hotelier's licence was not property, and that the rights to the poker machine entitlements were created by contract or trust, not by beneficial ownership of the licence. The court reasoned that the appellant was obliged, upon the determination of the lease, to transfer the poker machine entitlements to the respondents.
The appeal was allowed in part, with certain orders from the trial court set aside and the declaration regarding the transfer of poker machine entitlements varied. The court declared that the lease was varied to provide for a fixed term ending on 31 August 2007 and that the appellant was obliged to transfer the poker machine entitlements to the respondents upon the determination of the lease. Liberty was granted to the respondents to apply for injunctive relief, and directions were given regarding the filing of agreed minutes of order or written submissions concerning costs.
The court was required to determine whether the lease agreement, as initially formed and subsequently varied, obligated the appellant to transfer poker machine entitlements to the respondents. This involved considering whether there was a valid offer and acceptance of the lease terms, whether any deviations from the offer were for the sole benefit of the offeror, and how the relevant provisions of the *Gaming Machines Act 2001* (NSW) impacted the rights to these entitlements. The court also had to consider whether the hotelier's licence itself constituted property.
The Court of Appeal found that the lease had been varied by subsequent correspondence, establishing a fixed term ending on 31 August 2007. It held that the hotelier's licence was not property, and that the rights to the poker machine entitlements were created by contract or trust, not by beneficial ownership of the licence. The court reasoned that the appellant was obliged, upon the determination of the lease, to transfer the poker machine entitlements to the respondents.
The appeal was allowed in part, with certain orders from the trial court set aside and the declaration regarding the transfer of poker machine entitlements varied. The court declared that the lease was varied to provide for a fixed term ending on 31 August 2007 and that the appellant was obliged to transfer the poker machine entitlements to the respondents upon the determination of the lease. Liberty was granted to the respondents to apply for injunctive relief, and directions were given regarding the filing of agreed minutes of order or written submissions concerning costs.
Orders
Orders of the court
1. Allow the appeal in part;; 2. Set aside Orders 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11;; 3. Vary the declaration made in Order 5 so as to provide that the appellant is obliged upon the determination of the lease to transfer the poker machine entitlements to the respondents;; 4. Declare that by letters between the appellant and the respondents dated 12 May 2005 and 12 September 2005, the lease entered into by the parties on 1 August 2003 was varied so as to provide for a fixed term ending on 31 August 2007;; 5. Liberty to the respondents to apply for injunctive relief, either on an interlocutory or final basis;; 6. Direct the appellant and respondents to file within seven days agreed minutes of order in respect of the costs orders to be made both at first instance and on the appeal. If there is no agreement, then within 14 days of today's date the appellant and respondents are to file written submissions in respect of costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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