Masters v Garcia

Case [2005] NSWCA 287

Reported Decision:

 65 NSWLR 92

Court of Appeal


CITATION:

Masters v Garcia [2005] NSWCA 287
HEARING DATE(S):

19 July 2005
 
JUDGMENT DATE: 


26 August 2005

JUDGMENT OF:

Tobias JA at 1; Basten JA at 18; Campbell AJA at 107
DECISION:

1. Order that the orders and declarations numbered 1, 2 and 4-9 in the Court below entered on 28 May 2005 be set aside; 2. Direct that the parties indicate in writing what further orders should be made or further steps taken to dispose of the appeal, within 7 days; 3. Grant liberty to the parties to apply to Basten JA if further time is required to comply with the foregoing direction.
CATCHWORDS:

Poker machine entitlements under Gaming Machines Act 2001 - whether entitlements capable of being held on trust - whether former holder of hotelier's licence could retain the benefit of the transferability of poker machine entitlements - whether entitlements capable of being severed from hotelier's licence - whether lessor of hotel premises had a financial interest in the hotelier's licence for the purposes of s19 of the Gaming Machines Act
LEGISLATION CITED:

Gaming Machines Act 2001 (NSW)
Liquor Act 1982
Lotteries and Art Unions Act 1901
Gaming and Betting Act 1912
Unlawful Gambling Act 1998
Liquor (Amendment) Act 1993
Liquor and Registered Clubs Legislation Further Amendment Act 1996
Registered Clubs Act 1976
Evidence Act 1995 (NSW)
CASES CITED:

Jabetin Pty Ltd v Liquor Administration Board & Ors [2005] NSWCA 92
University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481
Hypec Electronics Pty Ltd (In liq) v Mead (2004) NSWCA 221
Whitehouse v BHP Steel Ltd (2004) NSWCA 428
Jack v Smail (1905) 2 CLR 684
Slatter v Railway Commissioners (NSW) (1931) 45 CLR 68
Wonall Pty Ltd v Clarence Property Corporation Ltd (2002) 58 NSWLR 23
Yanner v Eaton (1999) 201 CLR 351
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Solution 6 Holdings Ltd v Industrial Relations Commission (2004) 60 NSWLR 558
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
PARTIES:

Raymond Henry Masters (First Appellant)
Gweneth Hazel Masters (Second Appellant)
Paul Joseph Garcia (First Respondent)
Darren McAsey (Second Respondent)
FILE NUMBER(S):

CA 40425/05
COUNSEL:

M L D Einfeld QC/R Lancaster (Appellants)
J Garnsey QC/A Hatzis (Respondents)
SOLICITORS:

Verekers (Appellants)
Deutsch Partners Lawyers Pty Ltd (First Respondent)
Angela M Frost (Second Respondent)

LOWER COURT JURISDICTION:

Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):

6442/04

LOWER COURT JUDICIAL OFFICER:

Einstein J



                          CA 40425/05
                          ED 6442/04

                          TOBIAS JA
                          BASTEN JA
                          CAMPBELL AJA

                          26 August 2005
MASTERS & ANOR v GARCIA & McASEY

The Appellants own hotel premises, which in 1994, they leased to Goldsands Pty Ltd, which in turn, nominated Mr Garcia as the licensee of the hotel. In 1996 Goldsands transferred the lease to Mr Garcia.


In 1997 the Liquor Act 1982 (NSW) was amended to permit an hotelier’s licence to…

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AGLC
Masters v Garcia [2005] NSWCA 287
Case
[2005] NSWCA 287
Decision Date

CaseChat Overview and Summary

Masters and Garcia were parties to a dispute concerning poker machine entitlements under the *Gaming Machines Act 2001* (NSW). The case came before the Court of Appeal of New South Wales, with Tobias and Basten JJA and Campbell AJA presiding. The central issue revolved around the nature of these entitlements and their relationship with a hotelier's licence.

The court was required to determine whether poker machine entitlements were capable of being held on trust. Further, it needed to consider whether a former holder of a hotelier's licence could retain the benefit of the transferability of these entitlements, and whether the entitlements could be severed from the licence itself. Finally, the court had to assess whether the lessor of the hotel premises held a financial interest in the hotelier's licence for the purposes of section 19 of the *Gaming Machines Act 2001*.

The Court of Appeal set aside the orders and declarations made by the court below. The court directed the parties to indicate in writing within seven days what further orders should be made or steps taken to dispose of the appeal. Liberty was granted to the parties to apply to Basten JA if further time was required to comply with this direction.

Orders

Orders of the court

1. Order that the orders and declarations numbered 1, 2 and 4-9 in the Court below entered on 28 May 2005 be set aside; 2. Direct that the parties indicate in writing what further orders should be made or further steps taken to dispose of the appeal, within 7 days; 3. Grant liberty to the parties to apply to Basten JA if further time is required to comply with the foregoing direction.

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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