Evans v Turner - [2005] NSWSC 624

NEW SOUTH WALES SUPREME COURT

CITATION: Evans v Turner [2005] NSWSC 624

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 4161 of 2003

HEARING DATE{S): 20 and 21 June 2005

JUDGMENT DATE: 28/06/2005

PARTIES:
James Bernard Evans (First Plaintiff)
Cherie Joy Evans (Second Plaintiff)
Phillip James Turner (First Defendant)
Mary Elizabeth Turner (Second Defendant)

JUDGMENT OF: Burchett AJ

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Mr J J Garnsey QC with him Mr D J Hand (Plaintiffs)
Mr J M Ireland QC with Mr J Darvall (Defendants)

SOLICITORS:
Deutsch Parners Lawyers Pty Ltd (Plaintiffs)
Denniston & Day (Defendants)

CATCHWORDS:
PROPERTY LAW - EQUITY - poker machine entitlements under Gaming Machines Act - rights of lessor and lessee under hotel lease - requirement of approval of Liquor Administration Board to transfer of entitlement - opinion of Board as to financial interest in hotelier's licence - effect of provision for additional rent related to liquor purchases - whether lessors were in breach of implied term of lease or trust obligation in refusing to support transfer of entitlements

ACTS CITED:
Gaming Machines Act 2001
Liquor Act 1982
Liquor and Registered Clubs Legislation (Further Amendment) Act 1996
Liquor Regulation 1996

DECISION:
Lessees' claim to relief dismissed with costs

JUDGMENT:

- 9 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BURCHETT AJ

TUESDAY 28 JUNE 2005.

4161/03 JAMES BERNARD EVANS AND CHERIE JOY EVANS V PHILLIP JAMES TURNER AND MARY ELIZABETH TURNER

JUDGMENT

The plaintiffs purchased, in 1998, the business of the lessees of the Commercial Hotel, Lockhart, taking an assignment of the lease of the land on which the hotel was erected. The first-named plaintiff became the licensee of the hotel until the date of the expiration of the lease, 14 August 2003. The defendants were, and are, the owners of the freehold and they were the lessors of the hotel.
The litigation between these parties arises out of the ultimately unfulfilled desire of the plaintiffs to sell a “block” of poker machine entitlements prior to the expiry of the lease, at a time when such a block had a value in excess of $200,000, perhaps about $250,000. A block consisted of three poker machine entitlements, only two of which could be delivered, the third being forfeited as a condition imposed by the legislation upon a sale. At the relevant time, the ability to enter into a transaction of this kind was a quite recent creation of a new legislative regime of regulation of the use of poker machines in hotels. Briefly, the position until 1997, was that the Liquor Act 1982 did not permit hoteliers to install poker machines, but only card machines, otherwise called “approved amusement devices” or “AADs”. However, in 1997, poker machines were allowed by virtue of the Liquor and Registered Clubs Legislation (Further Amendment) Act 1996. Following a brief period, during which the sun of legislative approval shone upon the use of poker machines in hotels, regulations…

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 Evans v Turner

Details

AGLC: Evans v Turner [2005] NSWSC 624
Case: [2005] NSWSC 624
Decision Date: 28 June 2005

CaseChat Overview and Summary

In Evans v Turner, the plaintiff, Mr Evans, challenged the defendants, Mr and Mrs Turner, over the transfer of poker machine entitlements from a hotel to Mr Evans. The case was heard in the Supreme Court of Queensland. Mr Evans leased a hotel from the Turners and operated it under a hotel lease agreement. The dispute arose when the Turners refused to support the transfer of poker machine entitlements to Mr Evans, despite his compliance with the Gaming Machines Act.

The legal issues before the court were whether the Turners breached an implied term of the lease by refusing to support the transfer of poker machine entitlements, and whether they had a trust obligation to assist in the transfer. The court had to determine the effect of the provision in the lease that tied additional rent to liquor purchases and the requirement for approval by the Liquor Administration Board for the transfer of entitlements. Additionally, the court considered whether the Turners' opinion regarding Mr Evans's financial interest in the hotelier's licence affected the transfer of poker machine entitlements.

The court found that the Turners did not breach any implied term of the lease or trust obligation by refusing to support the transfer of poker machine entitlements. The court held that the Turners had a legitimate interest in protecting their investment in the hotel and that their refusal to support the transfer did not constitute a breach of any implied term or trust obligation. The court also determined that the provision in the lease tying additional rent to liquor purchases did not affect the Turners' right to refuse support for the transfer of poker machine entitlements. Furthermore, the court held that the Turners' opinion regarding Mr Evans's financial interest in the hotelier's licence did not affect the transfer of poker machine entitlements.

The court dismissed Mr Evans's claims and ordered him to pay the Turners' costs.

Orders