Jabetin Pty Ltd v Liquor Administration Board

[2004] NSWSC 613

CITATION:

JABETIN PTY LTD v LIQUOR ADMINISTRATION BOARD & ORS [2004] NSWSC 613

HEARING DATE(S):

7 July 2004

JUDGMENT DATE:

7 July 2004

JUDGMENT OF:

Levine J

DECISION:

I make the orders in the short minutes of order initialled by me and placed with the court papers. (Stay continued & expedition granted)

CATCHWORDS:

On application for extension of stay - Gaming Machines Act 2001 ss19, 20(3)(b) and 21(1) - expedition

LEGISLATION CITED:

Gaming Machines Act 2001 ss19, 20(3)(b), 21(1)

CASES CITED:

Wonall Pty Limited v Clarence Property Corporation Limited (2003) 58 NSWLR 23

PARTIES :

JABETIN PTY LTD
(Plaintiff)

v

LIQUOR ADMINISTRATION BOARD
(First defendant)

BENWINE PTY LTD
ACN 056 194 604
(Second defendant)

ALLAN JACKSON
(Third defendant)

FANTED PTY LTD
ACN 054 149 674
(Fourth defendant)

FILE NUMBER(S):

SC 12084 OF 2004

COUNSEL:

D P F Officer QC / J B Costigan
(Plaintiff)

A Hatzis
(Second defendant)

SOLICITORS:

Turnbull Hill Lawyers
(Plaintiff)

Crown Solicitor
(First defendant)

Deutsch Partners Lawyers
(Second defendant)

Grinberg Young Lawyers
(Third and fourth defendants)

[2004] NSWSC 613
Ex tempore: revised

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID LEVINE

WEDNESDAY 7 JULY 2004

12084 OF 2004

JABETIN PTY LTD
(Plaintiff)

v

LIQUOR ADMINISTRATION BOARD
(First defendant)

BENWINE PTY LTD
ACN 056 194 604
(Second defendant)

ALLAN JACKSON
(Third defendant)

FANTED PTY LTD
ACN 054 149 674
(Fourth defendant)
JUDGMENT (On application for extension of stay – Gaming Machines Act 2001 ss19, 20(3)(b) and 21(1) – expedition)

1 Yesterday I abridged the time for service of a notice of motion and a summons, each being made returnable this morning before me at ten o'clock.

2 The notice of motion seeks expedition of the substantive proceedings in the summons. Those proceedings relate to decisions made on 23 June and 2 July this year by the first defendant, the Liquor Administration Board, with respect to the transfer of poker machine entitlements by the second defendant, Benwine Pty Ltd, to the third and fourth defendants.

3 In the principal matter with which I am concerned today, namely, a continuation of a stay, an affidavit of Penelope Jane Hunter sworn 6 July 2004 has been read for the plaintiff. Ms Hunter’s affidavit constitutes the only evidence in the proceedings.

4 The first defendant, the Board, has in the usual way filed a submitting appearance.

5 The third and fourth defendants consent to the continuation of the stay of the orders made by the Board in relation to the transfer of the poker machine entitlements.

6 The second defendant opposes the continuation of the stay.

7 Each of the plaintiff and the second defendant asserts various matters that would operate to the prejudice of each in the event of the stay being dissolved or the stay being continued, respectively.

8 It is apparent, in fact, it is quite clear that there is a serious question to be tried and one that no doubt otherwise is of critical importance to the administration of the Gaming Machines Act 2001, not least in relation to s19 and notwithstanding the consideration hitherto of that legislation by Campbell J in Wonall Pty Limited v Clarence Property Corporation Limited (2003) 58 NSWLR 23.

9 For the plaintiff, the seriousness of the question to be tried was articulated as a proposition to the effect: how can a company in its position, which is entitled to have the licence restored to it on the expiration of the lease and which has had the benefits of the covenants in that lease, not have the requisite financial interest referred to in s19 of the Act? I interpolate that the vigour with which the question was raised does not derogate from what to me, on the information I have, clearly is a fundamental question in the administration of this legislation and in the resolution of the rights between the parties in this litigation.

10 Next, the plaintiff asserts that pursuant to s20(3)(b), and this is sworn to in the affidavit filed on its behalf, by reason of statutory forfeiture there exists a real risk of irreparable loss in the event of the stay not being continued. S20(3)(b) states:

20 General requirements relating to transfer of poker machine entitlements
(1) Poker machine entitlements allocated in respect of a hotelier’s licence may be transferred only to another hotelier’s licence.

(2) Poker machine entitlements allocated in respect of the premises of a registered club may be transferred only:

(a) to another set of the club’s premises, or
(b) to the premises of another registered club.
(3) Subject to this Act, the following requirements apply to the transfer of poker machine entitlements:

(a) a transfer must comprise one or more blocks of 3 poker machine entitlements,
(b) from each such block of 3 poker machine entitlements, one of the entitlements must be forfeited to the Board . (emphasis added)

11 The plaintiff further relies upon the fact that the third and fourth defendants, the transferees from the second defendant, are agreeable to the continuation of the stay.

12 The plaintiff also gives the usual undertaking as to damages.

13 The plaintiff also undertakes diligently to prosecute the substantive appeal as set out in the summons.

14 For the second defendant, the principal matter advanced in opposition to the continuation of the stay, and which underpins its assertion of prejudice and damage, and which should resolve the balance of convenience in its favour, is, as I understand it, the operation of yet another section of this legislation, namely, s21(1) which provides:

21(1) In the case of a hotelier’s licence that is held in relation to a country hotel, no more than one block of poker machine entitlements allocated in respect of the licence may be transferred in any period of 12 months to a hotelier’s licence held in relation to a hotel that is situated in a metropolitan area.

15 It seems to me as to the position taken by the second defendant, first, that its position, in relation to what I understand to be the penultimate year of its lease, in terms of the section, is that it would enjoy some protection by reason of the date of the transfer (otherwise stayed) being stated to have been made on 2 July 2004. Secondly, in any event, in the evidentiary context which I have, the potential for prejudice or damage by the operation of s21(1) can only be regarded as at this morning as speculative and hypothetical in so far as the prohibition or embargo referred to in that section operates in relation to transfers from country to metropolitan entities, if I may put it that way.

16 In the circumstances which I have outlined, taking account of the catalogue of matters advanced by Mr Officer, taking into account the view I have formed as to the operation of s21(1), the fact that the third and fourth defendants consent to the continuation of the stay and the fact that everyone requests that good sense prevail and agrees that justice requires expedition, I am persuaded that the balance of convenience favours the continuation of the stay.

17 HIS HONOUR: Now, Mr Officer, looking at the summons on the second page under the heading “Interlocutory Relief” an order to the effect, I suppose, will be that the decision of the first defendant made on 2 July - that is the substantive decision?

18 OFFICER: Yes it is.

19 HIS HONOUR: …be stayed pending the final determination of the summons. The second order is that the hearing of the summons be expedited.

20 (Short adjournment for formulation of short minutes.)

21 HIS HONOUR: I make the orders in the short minutes of order initialled by me and placed with the court papers.

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Last Modified: 07/08/2004