New South Wales
Court of Appeal
CITATION: Martin & Anor v Kelly & Ors [2009] NSWCA 105 HEARING DATE(S): 21 April 2009
JUDGMENT DATE:
12 May 2009JUDGMENT OF: Tobias JA at 1; McColl JA at 105; Macfarlan JA at 106 DECISION: (a) Summons for leave to appeal dismissed with no order as to costs;
(b) Appeal allowed;
(c) Set aside the orders made by Johnson J on 12 June 2008;
(d) Set aside the approval dated 20 December 2006 of the Liquor Administration Board with respect to the transfer of the poker machine entitlements the subject of its decision of that date;
(e) Remit to the Casino, Liquor and Gaming Control Authority for its consideration under s 19 of the Gaming Machines Act 2001 the application for the Authority’s approval of the transfer of one block of three poker machine entitlements from the Tabulam Hotel, Tabulam to the Black Market Hotel, Chippendale lodged with the Liquor Administration Board on 16 October 2006;
(f) The first, second, fourth and fifth respondents to pay the appellants’ costs of the proceedings before Johnson J and of the appeal but to have with respect to the latter a certificate under the Suitor’s Fund Act, 1951, if otherwise qualified;CATCHWORDS: ADMINISTRATIVE LAW – Judicial review – Grounds of review – Error of law – Irrelevant consideration – Decision of Liquor Administration Board – Approval of transfer of poker machine entitlements – Gaming Machines Act s 19(3)(c) – Whether Board satisfied that the transfer was supported by each person who in its opinion had a financial interest in the hotelier’s license – Whether lessors of hotel were entitled to receive income derived from the business carried on under hotelier’s license where fixed rent paid – Lease contained option to renew clause with rent payable on the basis of poker machine turnover – No lease entered into in terms of option clause – Whether option to renew exercised – Whether lessee holding over under terms of lease – Whether agreement for lease entered into in terms of option – Whether conduct of parties precluded any claim for specific performance of any such agreement for lease constituted by exercise of option – Functions of Liquor Administration Board assumed by Casino, Liquor and Gaming Control Authority LEGISLATION CITED: Casino, Liquor and Gaming Control Authority Act 2007
Gaming Machines Act 2001
Liquor Act 1982
Liquor Act 2007
Miscellaneous Acts (Casino, Liquor and Gaming) Amendment Act 2007
Supreme Court Act 1970CASES CITED: Campbelltown City Council v Vegan & Ors [2006] NSWCA 284
Jabetin Pty Ltd v Liquor Administration Board [2005] NSWCA 92; (2005) 63 NSWLR 602
Martin & Anor v Kelly & Ors [2008] NSWSC 577
Masters v Garcia [2005] NSWCA 287; (2005) 65 NSWLR 92
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259PARTIES: George Owen Martin
Alison Martin
Robert James Kelly
Kenneth John Kelly
Liquor Administration Board
Reserve Hotels Pty Ltd
Scott Patrick LaneFILE…
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Details
- AGLC
- Martin v Kelly [2009] NSWCA 105
- Case
- [2009] NSWCA 105
- Decision Date
CaseChat Overview and Summary
The case of *Martin v Kelly* concerned an appeal from a decision of Johnson J regarding the approval of a transfer of poker machine entitlements by the Liquor Administration Board (now the Casino, Liquor and Gaming Control Authority). The appellants sought judicial review of the Board's decision to approve the transfer, arguing that the Board had failed to properly consider the financial interests of all relevant parties, specifically the lessors of the hotel from which the entitlements were being transferred.
The central legal issues before the court were whether the Liquor Administration Board had erred in law by failing to consider irrelevant considerations and by failing to be satisfied that the transfer was supported by each person who, in its opinion, had a financial interest in the hotelier's licence. This involved determining whether the lessors of the hotel had a financial interest in the hotelier's licence, particularly in light of a lease agreement that included an option to renew with rent based on poker machine turnover, and whether that option had been exercised or if the parties were otherwise bound by its terms.
The Court of Appeal found that the Board had indeed erred in law. It reasoned that the lessors, by virtue of the lease agreement and the option to renew which tied rent to poker machine turnover, possessed a financial interest in the hotelier's licence that the Board was obliged to consider. The court determined that the lessors' conduct, in relation to the option to renew, did not preclude them from having such an interest. Consequently, the Board's failure to adequately consider this interest constituted an error of law.
The appeal was allowed, the orders of Johnson J and the approval of the Liquor Administration Board were set aside, and the matter was remitted to the Casino, Liquor and Gaming Control Authority for reconsideration. The respondents were ordered to pay the appellants' costs.
The central legal issues before the court were whether the Liquor Administration Board had erred in law by failing to consider irrelevant considerations and by failing to be satisfied that the transfer was supported by each person who, in its opinion, had a financial interest in the hotelier's licence. This involved determining whether the lessors of the hotel had a financial interest in the hotelier's licence, particularly in light of a lease agreement that included an option to renew with rent based on poker machine turnover, and whether that option had been exercised or if the parties were otherwise bound by its terms.
The Court of Appeal found that the Board had indeed erred in law. It reasoned that the lessors, by virtue of the lease agreement and the option to renew which tied rent to poker machine turnover, possessed a financial interest in the hotelier's licence that the Board was obliged to consider. The court determined that the lessors' conduct, in relation to the option to renew, did not preclude them from having such an interest. Consequently, the Board's failure to adequately consider this interest constituted an error of law.
The appeal was allowed, the orders of Johnson J and the approval of the Liquor Administration Board were set aside, and the matter was remitted to the Casino, Liquor and Gaming Control Authority for reconsideration. The respondents were ordered to pay the appellants' costs.
Orders
Orders of the court
(a) Summons for leave to appeal dismissed with no order as to costs; (b) Appeal allowed; (c) Set aside the orders made by Johnson J on 12 June 2008; (d) Set aside the approval dated 20 December 2006 of the Liquor Administration Board with respect to the transfer of the poker machine entitlements the subject of its decision of that date; (e) Remit to the Casino, Liquor and Gaming Control Authority for its consideration under s 19 of the Gaming Machines Act 2001 the application for the Authority's approval of the transfer of one block of three poker machine entitlements from the Tabulam Hotel, Tabulam to the Black Market Hotel, Chippendale lodged with the Liquor Administration Board on 16 October 2006; (f) The first, second, fourth and fifth respondents to pay the appellants' costs of the proceedings before Johnson J and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act, 1951, if otherwise qualified;
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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