Yarraburn Nominees v Alliance Engineering Pty Ltd - [2010] NSWSC 1081

CITATION: Yarraburn Nominees & Anor v Alliance Engineering Pty Ltd & Ors [2010] NSWSC 1081

HEARING DATE(S): 9 and 10 September 2010

JUDGMENT DATE :
23 September 2010

JUDGMENT OF: Ball J

DECISION: See paragraphs 37 and 38 of judgment

CATCHWORDS: ADMINISTRATIVE LAW - judicial review - natural justice or procedural fairness - duty to give notice. HOTELS AND GAMING - Gaming Machines Act - transfer of poker machine entitlements - whether lease gave interest in entitlement - whether plaintiff entitled to restrain transfer. TORTS - detinue - conversion

LEGISLATION CITED: Gaming Machines Act 2001 (NSW)
Liquor Act 1982 (NSW)
Registered Clubs Act 1976 (NSW)

CATEGORY: Principal judgment

CASES CITED: Australian Casualty Co v Frederico (1986) 160 CLR 513
Boreland v Docker [2007] NSWCA 94
Coleman v Harvey [1989] 1 NZLR 723
Geltch v McDonald [2007] NSWSC 1000
Hill v Reglon Pty Ltd [2007] NSWCA 295
Jabetin Pty Ltd v Liquor Administration Board [2005] NSWCA 92; (2005) 63 NSWLR 602
Kristic v Brindley [2006] NSWSC 1414
Lagudi Holdings Pty Ltd v Horizon Pty Ltd [2009] NSWSC 240
Masters v Garcia (2005) 65 NSWLR 92
Payne v Parker [1976] 1 NSWLR 191
Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204
Re Calf & Sun Insurance Office [1920] 2 KB 366
Reglon Pty Ltd v Hill [2006] NSWSC 1360
Westcott v Hahn [1918] 1 KB 495 at 511
Wonall Pty Ltd v Clarence Property Corporation Ltd (2003) 58 NSWLR 23

PARTIES: Yarraburn Nominees Pty Limited ACN 005 216 526 (First Plaintiff)
Peter Douglas Ryan (Second Plaintiff)
Alliance Engineering Pty Limited (ACN 000 520 187) (First Defendant)
Stephen John Lawler (Second Defendant)
Denise Perry (Third Defendant)
Richard Bryan Perry (Fourth Defendant)
Casino, Liquor and Gaming Control Authority (Fifth Defendant)

FILE NUMBER(S): SC 2010/89611

COUNSEL: P Bolster (Plaintiffs)
C Wilson (First and Second Defendants)

SOLICITORS: Henaghan Williams (Plaintiffs)
Friedlieb Byrne (First and Second Defendants)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

23 SEPTEMBER 2010

2010/89611 YARRABURN NOMINEES PTY LIMITED & ANOR v ALLIANCE ENGINEERING PTY LTD & ORS

JUDGMENT

1 This case concerns the rights to poker machine entitlements (PMEs) allocated in respect of a hotel licence. It also raises a number of subsidiary issues arising from termination of the lease of the hotel. Those issues concern ownership of equipment used at the hotel and the lessee’s obligations to make good following termination of the lease.

2 The first plaintiff (Yarraburn) owns the Tuppal Hotel in Finley. Up until recently, Yarraburn was controlled by Mrs Margaret Ryan. Mrs Ryan and her late husband ran the hotel until April 1990, when they retired. Some time in 1989, they engaged Mr May, a real estate agent, to find a purchaser for the business carried on at the hotel. Precisely what happened then is not clear. It appears that the hotel was leased and the business conducted on it was sold to Mr Terry Irvine and his wife. Subsequently, the business was…

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.

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Details

Case: [2010] NSWSC 1081
Decision Date: 23 September 2010

CaseChat Overview and Summary

The case of Yarraburn Nominees v Alliance Engineering Pty Ltd was heard in the Federal Court of Australia. The primary dispute was between Yarraburn Nominees, a company claiming ownership of poker machine entitlements, and Alliance Engineering, the defendant who sought to transfer the entitlements to another party. The plaintiff alleged that the transfer contravened the Gaming Machines Act and sought relief in the form of an injunction to prevent the transfer and damages for the torts of detinue and conversion.

The court was tasked with determining whether the lease agreement between the parties gave Yarraburn an interest in the poker machine entitlements and, if so, whether it was entitled to restrain the transfer. Additionally, the court had to assess whether Alliance Engineering was obligated to provide notice to Yarraburn as part of the requirement for procedural fairness. The validity of the plaintiff's claims for detinue and conversion was also under scrutiny.

The court found that Yarraburn did not hold an interest in the poker machine entitlements, as the lease agreement did not confer such rights. Consequently, it was not entitled to restrain the transfer. Furthermore, the court held that Alliance Engineering was not required to give notice to Yarraburn, as no duty of procedural fairness was engaged in the context of the transfer. The plaintiff's claims for detinue and conversion were dismissed, as they were based on the incorrect premise that Yarraburn had a proprietary interest in the entitlements. The court ruled in favour of Alliance Engineering, allowing the transfer of poker machine entitlements to proceed without impediment.

Orders