Masters v Garcia (No 2)

Case [2006] NSWCA 15
Reported Decision: 65 NSWLR 92

Court of Appeal


CITATION: MASTERS v GARCIA [NO. 2] [2006] NSWCA 15
HEARING DATE(S): 30 November 2005
 
JUDGMENT DATE: 
15 February 2006
JUDGMENT OF: Tobias JA; Basten JA; Campbell AJA
DECISION: 1. Allow the appeal and set aside Declarations 1 and 2 and Orders 3-9 made by Einstein J on 23 May 2005 and Order 1 made on 31 May 2005; 2. In lieu of the declarations and orders made by Einstein J, order that; (1) the Second Respondent do all things, including signing all documents and making all applications as requested or directed by the First Respondent, at the cost of the First Respondent, in order to; (a) transfer the poker machine entitlements allocated in respect of hotelier’s licence no. 100094 to such person, being the holder of an hotelier’s licence issued under the Liquor Act 1982, as the First Respondent may nominate; (b) make or cause to permit to be made, an application to the Liquor Administration Board for its approval of such transfer or transfers of the poker machine entitlements; (c) give effect to any variation of the authorisation under Part 5 of the Gaming Machines Act, pursuant to s 20(7) of that Act, with respect to such transfers, and; (d) account to the First Respondent, in such manner as the First Respondent may in writing direct, for the proceeds of sale of such poker machine entitlements; (2) the Second Respondent be restrained from dealing with or disposing with or purporting to deal with or dispose of any of the poker machine entitlements otherwise than in accordance with a direction given by the First Respondent; (3) the Second Respondent be restrained from doing anything to obstruct or hinder the sale and transfer of the poker machine entitlements at the direction of the First Respondent; (4) the Appellants pay 75% of the First Respondent’s costs of the proceedings in the Equity Division and of the appeal; 3. Liberty to the First Respondent to apply to a judge of the Equity Division on 48 hours’ written notice to the Appellants in the event that the Appellants attempt to interfere unlawfully with the compliance by the Second Respondent with Orders 2(1), (2) and (3) above; 4. The parties be discharged from further compliance with condition (ii) attaching to the stay granted by the President on 24 May 2005
CATCHWORDS: Practice and Procedure – determination of appropriate form of orders – whether order in the nature of specific performance should be made with respect to the transfer of poker machine entitlements created by the Gaming Machines Act 2001 (NSW) – consideration of consequences of a failure to file a notice of contention – whether damages would be an adequate remedy
LEGISLATION CITED: Gaming Machines Act 2001 (NSW), s19, s20
CASES CITED: Burns Philp Trust Co Pty Ltd v Kwikasair Freightlines Ltd (1963) 63 SR(NSW) 492
Coulton v Holcombe (1986) 162 CLR 1
Masters v Garcia [2005] NSWCA 287
O'Sullivan v Watson (1986) 7 NSWLR 693

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AGLC
Masters v Garcia [No 2] [2006] NSWCA 15
Case
[2006] NSWCA 15
Decision Date

CaseChat Overview and Summary

In *Masters v Garcia (No 2)*, the New South Wales Court of Appeal considered an appeal concerning the transfer of poker machine entitlements. The dispute arose from a prior decision of Einstein J, where declarations and orders were made regarding these entitlements. The appeal was brought by the Appellants against the First Respondent, with the Second Respondent also involved in the proceedings.

The central legal issues before the Court of Appeal were whether an order in the nature of specific performance was appropriate for the transfer of poker machine entitlements created under the *Gaming Machines Act 2001* (NSW). The court also had to consider the consequences of a failure to file a notice of contention and whether damages would constitute an adequate remedy in the circumstances.

The Court of Appeal allowed the appeal, setting aside the previous declarations and orders. In their place, the court ordered that the Second Respondent was to take all necessary steps, at the cost of the First Respondent, to transfer the poker machine entitlements allocated to a specific hotelier’s licence. This included signing documents, making applications for approval to the Liquor Administration Board, giving effect to variations of authorisation under the *Gaming Machines Act*, and accounting for the proceeds of sale as directed by the First Respondent. The Second Respondent was also restrained from dealing with the entitlements otherwise than in accordance with the First Respondent’s directions and from obstructing the sale and transfer. The Appellants were ordered to pay 75% of the First Respondent’s costs. Liberty was granted to the First Respondent to apply to a judge of the Equity Division if the Appellants unlawfully interfered with the Second Respondent’s compliance with the orders.

Orders

Orders of the court

1. Allow the appeal and set aside Declarations 1 and 2 and Orders 3-9 made by Einstein J on 23 May 2005 and Order 1 made on 31 May 2005; 2. In lieu of the declarations and orders made by Einstein J, order that; (1) the Second Respondent do all things, including signing all documents and making all applications as requested or directed by the First Respondent, at the cost of the First Respondent, in order to; (a) transfer the poker machine entitlements allocated in respect of hotelier’s licence no. 100094 to such person, being the holder of an hotelier’s licence issued under the Liquor Act 1982, as the First Respondent may nominate; (b) make or cause to permit to be made, an application to the Liquor Administration Board for its approval of such transfer or transfers of the poker machine entitlements; (c) give effect to any variation of the authorisation under Part 5 of the Gaming Machines Act, pursuant to s 20(7) of that Act, with respect to such transfers, and; (d) account to the First Respondent, in such manner as the First Respondent may in writing direct, for the proceeds of sale of such poker machine entitlements; (2) the Second Respondent be restrained from dealing with or disposing with or purporting to deal with or dispose of any of the poker machine entitlements otherwise than in accordance with a direction given by the First Respondent; (3) the Second Respondent be restrained from doing anything to obstruct or hinder the sale and transfer of the poker machine entitlements at the direction of the First Respondent; (4) the Appellants pay 75% of the First Respondent’s costs of the proceedings in the Equity Division and of the appeal; 3. Liberty to the First Respondent to apply to a judge of the Equity Division on 48 hours’ written notice to the Appellants in the event that the Appellants attempt to interfere unlawfully with the compliance by the Second Respondent with Orders 2(1), (2) and (3) above; 4. The parties be discharged from further compliance with condition (ii) attaching to the stay granted by the President on 24 May 2005

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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