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Boreland v Docker

Boreland v Docker

Case [2007] NSWSC 53 9 February 2007

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CITATION: John Leslie Boreland v Shane Docker & 1 Or [2007] NSWSC 53
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 31/01/07, 01/02/07

JUDGMENT DATE :
9 February 2007

JURISDICTION: Equity Division

JUDGMENT OF: White J

DECISION: See paragraph 118 of the judgment.

CATCHWORDS: CONTRACT – Offer and Acceptance – Offer to vary terms of lease – Whether precise correspondence between offer and purported acceptance - LIQUOR LAW – Poker machine entitlements – Lessee required to transfer hotelier’s licence on termination of least at lessors’ direction – Whether poker machine entitlements held on trust for lessors prior to lessors re-taking possession - LANDLORD AND TENANT – Lease of licensed premises – Term that lessors were beneficial owners of hotelier’s licence – Where no trust created because licence is not property – Implications with respect to poker machine entitlements appurtenant to licence.

LEGISLATION CITED: Gaming Machines Act 2001 (NSW)
Liquor Act 1982 (NSW)
Conveyancing Act 1919 (NSW)
Trustee Act 1925 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

CASES CITED: J W Carter, Carter on Contract, LexisNexis Butterworths, Sydney, 2002
Tonitto v Bassal (1992) 28 NSWLR 564
Jabetin Pty Ltd v Liquor Administration Board (2005) 63 NSWLR 602
Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 4 ed, para [20-035]
Walsh v Lonsdale (1882) 21 Ch. D. 9
Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Austotel Pty Ltd v Franklins Self Serve Pty Ltd (1989) 16 NSWLR 582
Masters v Garcia (2005) 65 NSWLR 92
Jack v Smail (1905) 2 CLR 684
Ex Parte Berry Re Kessell (1936) 36 SRNSW 485
Slatter v Railway Commissioners (NSW) (1945) 45 CLR 68
Casino & Tavern Pty Ltd v Hurlfobe Pty Ltd (1997) 8 BPR 15,505
Wonall Pty Ltd v Clarence Property Corporation Ltd (2003) 58 NSWLR 23
Evans v Collins [2006] NSWSC 427
Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Fitzgerald v Masters (1956) 95 CLR 420
Hurstville Municipal Council v Connor (1991) 24 NSWLR 724

PARTIES: John Leslie Boreland
v
Shane Docker & 1 Or

FILE NUMBER(S): SC 6461/05

COUNSEL: Plaintiff: G A Moore, A Hatzis
Defendants: D Murr SC, J Conomy

SOLICITORS: Plaintiff: Mavrakis & Associates
Defendants: JDK Legal

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 9 February 2007

6461/05 John Leslie Boreland v Shane Docker & 1 Or

JUDGMENT

1 HIS HONOUR: These proceedings concern the poker machine entitlements allocated in respect of a liquor licence held by the lessee of the Arncliffe Hotel. The plaintiff claims to be entitled to apply under s 19 of the Gaming Machines Act 2001 (NSW) to the Liquor Administration Board for the transfer of such poker machine entitlements. The plaintiff became the lessee of the hotel on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boreland v Docker

Details

AGLC: Boreland v Docker [2007] NSWSC 53
Case: [2007] NSWSC 53
Decision Date: 9 February 2007

CaseChat Overview and Summary

Boreland v Docker was a case that came before the Supreme Court of South Australia. The dispute involved the lessors, Boreland, and the lessees, Docker, regarding the terms of a lease and poker machine entitlements. The case focused on whether there was precise correspondence between an offer to vary the terms of the lease and the lessees' purported acceptance of those terms. Additionally, it considered whether the poker machine entitlements were held on trust for the lessors prior to their re-taking possession of the premises.

The legal issues the court was required to decide included whether the offer to vary the lease terms had been precisely matched by the lessees' acceptance, and whether a trust was created regarding the poker machine entitlements. The court also needed to determine if the lessors were the beneficial owners of the hotelier's licence, and if the licence was property, thus creating a trust. The implications of these findings in relation to the poker machine entitlements appurtenant to the licence were also considered.

The court found that there was not precise correspondence between the offer and acceptance, and therefore, the variation to the lease terms was not valid. It was also determined that no trust was created regarding the poker machine entitlements, as the hotelier's licence was not property. As such, the poker machine entitlements were not held on trust for the lessors. The court further held that the lessors were not the beneficial owners of the hotelier's licence because it was not property. Consequently, the poker machine entitlements were not appurtenant to the licence, and the lessors were not entitled to them.

The final orders of the court confirmed the invalidity of the lease term variation, the non-existence of a trust over the poker machine entitlements, and the non-beneficial ownership of the hotelier's licence by the lessors. The court ruled that the lessees were entitled to retain the poker machine entitlements upon termination of the lease.

Orders