Evans v Collins

[2006] NSWSC 427

CITATION:	Evans & Anor v Collins & Ors [2006] NSWSC 427
HEARING DATE(S):	28/04/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	04/28/2006
DECISION:	Ex parte injunction restraining Liquor Administration Board from dealing with an application for approval of transfer of poker machine entitlements dissolved. Summons partially dismissed. Plaintiffs to pay defendants' costs.
CATCHWORDS:	LIQOUR LAW - Licensing - Poker Machine Entitlements - Whether a poker machine entitlment is a permit under or endorsed on a lease - Whether a poker machine entitlement is part of a hotel as defined in a lease
PARTIES:	Gregory Ross Evans - First Plaintiff Donald Rex Evans - Second Plaintiff William Arthur Collins - First Defendant Julie Mary Collins - Second Defendant Liquor Administation Board - Third Defendant
FILE NUMBER(S):	SC 2488/06
COUNSEL:	Mr D O'Dowd - Plaintiff Mr A Hatzis - First and Second Defendants
SOLICITORS:	O'Sullivan Saddington Lawyers Deutsch Partners Lawyers Pty Ltd I V Knight Crown Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

28 APRIL 2006

2488/06 GREGORY ROSS EVANS & ANOR v WILLIAM ARTHUR COLLINS & ORS

EX TEMPORE JUDGMENT

1 On 26 April 2006 I granted an ex parte injunction restraining the third defendant, the Liquor Administration Board, from determining or, in the alternative, taking steps to enforce or otherwise implement any decisions made by it in respect of an application by the first and second defendants for permission to transfer poker machine entitlements from the Railway Hotel at Temora. I did so on evidence that the Liquor Administration Board was to deliver its decision the next day.

2 The argument advanced for the continuation of that injunction and the grant of a further injunction restraining the first and second defendants from selling or transferring the poker machine entitlements without the prior written consent of the plaintiffs, hinges upon the interpretation of provisions in the lease.

3 Clause 4.5 is in the following terms:

“Not to make or permit or suffer to be made any application of whatsoever nature in respect of the licence or the Hotel including but without limiting the generality thereof (sic) any application for the transfer removal variation or extension of the licence or for any permit thereunder or endorsement thereof without the prior written consent of the Lessor.”

4 It was submitted, first, that the poker machine entitlements fall within the expression “the Hotel” with the consequence that the first and second defendants are by that clause prevented from taking the course they have. The term is defined in clause 1:

“”Hotel” means the licensed premises referred to as the Railway Hotel, Temora and all other buildings erections fixtures fittings plant and improvements or things with appurtenances belonging thereto and now or hereafter erected on the land and including but without limiting the generality hereof the Beer and CO2 plant electrical installations wiring plumbing etc."

5 In my view, there is no serious argument that the definition encompasses poker machine entitlements. The definition, clearly, is limited to the premises and physical items associated with it.

6 The second argument arises with respect to the definition of "Licence" which is in these terms:

“Licence means the Hotelier's Licence in respect of the Hotel including any permits thereunder or endorsements thereon.”

7 It was submitted that the poker machine entitlements fall within the definition as permits.

8 In my view, there is no serious argument in that respect either. The permits and endorsements to which reference is made are those under or on the licence itself. Poker machine entitlements are neither endorsed on the licence nor created under the licence.

9 The same considerations apply to the last argument that the poker machine entitlements fall within the terms of cl 4.5 of the lease as “any permit thereunder or endorsement thereof (sic).” I have already dealt with that argument.

10 In my view, there is no serious question to be tried that should ground the grant of an injunction against the first and second defendants or the continuation of the injunction against the Liquor Administration Board.

11 Furthermore, the plaintiffs have been aware of the existence of the sale agreement since 7 February 2006. They were aware of the application before the Liquor Administration Board for approval of the transfer of the poker machine entitlements and made submissions in opposition to it. The arguments raised on 26 April 2006 were not raised at any stage since 7 February 2006. On a discretionary basis it is my view that the plaintiffs are too late in their current application.

12 I dissolve the order I made on 26 April 2006 restraining the Liquor Administration Board. I dismiss the claims in paragraphs 3 and 4 of the summons. I order the plaintiffs to pay the defendants' costs. I stand the matter over before the Registrar at 9.30 am on Thursday 4 May 2006.

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