Legal Research
Cases
Krstic v Brindley

Krstic v Brindley

Case [2006] NSWSC 1414 1 December 2006

No judgment structure available for this case.

Type to search within this case.

CITATION: Krstic v Brindley [2006] NSWSC 1414
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 December 2006

JUDGMENT DATE :
1 December 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 12/01/2006

DECISION: Injunction granted restraining a particular proposed transfer of one poker machine entitlement.

CATCHWORDS: GAMING AND WAGERING - poker machine entitlements - whether lease covenant prohibits transfer - LIQUOR LAW - other matters - poker machine entitlements - whether lease covenant to use best endeavours to maintain and extend the business prevents lessee from seeking transfer of poker machine entitlement - nature of "the business of hoteliers" - meaning of "best endeavours" clause - LANDLORD AND TENANT - covenants - to use best endeavours to maintain and extend the business - to carry on the business of a hotelier

LEGISLATION CITED: Gaming Machines Act 2001

CASES CITED: Apollo Shower Screens Pty Ltd & Anor v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561
Baiada & Ors v Waste Recycling & Processing Service Of NSW [1999] NSWCA 139; (1999)130 LGERA 52
Hampton Court Ltd v Crooks (1957) 97 CLR 367
Jones v Dunkel (1959) 101 CLR 298
Transfield Pty Ltd v Arlo International Limited (1980) 144 CLR 83

PARTIES: Vojislay Krstic - First Plaintiff
Kovilkja Krstic - Second Plaintiff
Goran Krstic - Third Plaintiff
Dragan Krstic - Fourth Defendant
John Brindley - Defendant

FILE NUMBER(S): SC 6002/06

COUNSEL: S Brennan - Plaintiffs
A Hatzis - Defendant

SOLICITORS: Creaghe Lisle Temora - Plaintiffs
Deutsche Partners - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

1 DECEMBER 2006

6002/06 VOJOSLAY KRSTIC & ORS v JOHN BRINDLEY

JUDGMENT – Ex Tempore (revised 18 December 2006)

1 HIS HONOUR: This is an application for a final injunction restraining the defendant from selling any poker machine entitlement that is allocated in respect of the licence for the Royal Hotel, Temora during the term of the current lease between the parties. There is also an application for an order restraining the defendant from further prosecuting before the Liquor Administration Board its application to transfer one poker machine entitlement from the Royal Hotel, Temora to a particular hotel in Armidale during the term of the current lease between the parties.

2 The plaintiffs are the owners of the freehold of the Royal Hotel, Temora. At some stage prior to 22 August 2002 the plaintiffs made application to the Liquor Administration Board for approval to keep six hardship gaming machines. The result of that application was notified on 22 August 2002 when the Board informed one of the plaintiffs that it had determined to approve only three hardship gaming machines. One of the grounds that the Board relied upon for that decision to not grant the full number sought was:

“The Board had regard to your client's stated hardship circumstances and the likely profits that will be generated…

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 Krstic v Brindley

Details

AGLC: Krstic v Brindley [2006] NSWSC 1414
Case: [2006] NSWSC 1414
Decision Date: 01/12/2006

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Krstic v Brindley revolved around the entitlements of poker machines in a commercial lease agreement. The plaintiff, Krstic, was the lessor of a commercial property, and the defendant, Brindley, was the lessee. The dispute centred on whether the lease covenant prohibiting the transfer of poker machine entitlements was enforceable, and if a covenant requiring the lessee to use best endeavours to maintain and extend the business prevented the lessee from seeking a transfer of poker machine entitlement. The case also involved other related matters concerning the nature of the business of hoteliers and the meaning of the "best endeavours" clause within the lease.

The legal issues before the court were to determine the enforceability of the lease covenant prohibiting the transfer of poker machine entitlements, and the extent to which the covenant to use best endeavours to maintain and extend the business affected the lessee's ability to seek a transfer of such entitlements. The court was required to interpret the terms of the lease agreement and consider relevant case law to provide guidance on the nature of the business of hoteliers and the meaning of the "best endeavours" clause.

The court held that the lease covenant prohibiting the transfer of poker machine entitlements was enforceable, as it was a legitimate and reasonable restriction within the context of a commercial lease agreement. The court further determined that the covenant to use best endeavours to maintain and extend the business did not prevent the lessee from seeking a transfer of poker machine entitlement, as long as such actions were in line with the overall objective of maintaining and extending the business. The court emphasised the importance of interpreting the lease agreement as a whole and considering the surrounding circumstances when determining the meaning and effect of the relevant covenants. In this case, the court found that the transfer of poker machine entitlements could be considered as part of the lessee's efforts to maintain and extend the business, provided that it did not undermine the core objectives of the lease agreement.

The court's decision in Krstic v Brindley provides valuable guidance for lessors and lessees in relation to poker machine entitlements, lease covenants, and the interpretation of lease agreements in general. The court's emphasis on the importance of interpreting the lease agreement as a whole and considering the surrounding circumstances will be of particular relevance to future cases involving similar issues.

Orders