Alliance Engineering Pty Ltd & Anor v Yarraburn Nominees Pty Ltd & Ors [2011] NSWCA 301

Alliance Engineering Pty Ltd & Anor v Yarraburn Nominees Pty Ltd & Ors [2011] NSWCA 301

Clauses 4.10 and 4.11 were not confined to liquor licences. Immediately before the transfer, Alliance's permission to keep and operate two poker machines at the hotel depended on both two poker machine entitlements allocated in respect of the hotelier's licence and authorisation from the Authority. That ongoing permission could conventionally be described as a licence of the premises for the current year. By transferring one poker machine entitlement to Ms Perry and applying for approval, Alliance applied for removal of that licence from the hotel and contravened clause 4.11; on termination it was required by clause 4.10 to do all acts necessary to transfer the licence, including the...

Jurisdiction
Australia
Judgment Date
21 September 2011
Procedural Posture
Appeal Concerning Construction of a Hotel Lease and Transfer of a Poker Machine Entitlement / Appeal From Decision of Ball J, [2010] NSWSC 1081
Outcome
Appeal dismissed.
Legal Topics
['hotel Lease' 'poker Machine Entitlement' 'lessor Consent' 'gaming Machines Act 2001' 'construction of Licence Clauses']
['leases' 'hotels and Gaming' 'contract Construction'] ['hotel Lease' 'poker Machine Entitlement' 'lessor Consent' 'gaming Machines Act 2001' 'construction of Licence Clauses']

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Procedural Posture

Appeal Concerning Construction of a Hotel Lease and Transfer of a Poker Machine Entitlement / Appeal From Decision of Ball J, [2010] NSWSC 1081

Legal Issues

  1. 1 ["Whether, on the true construction of the hotel lease, the assignee of the lease was entitled shortly before termination to transfer a poker machine entitlement to a third party without the lessor's consent." 'Whether a poker machine entitlement was a licence, or part of a licence or permission to keep and operate poker machines, for the purposes of clauses 4.10 and 4.11 of the lease.' "Whether the lessee's application to transfer the poker machine entitlement constituted an application for removal of a licence of the hotel."]

Ratio Decidendi

Clauses 4.10 and 4.11 were not confined to liquor licences. Immediately before the transfer, Alliance's permission to keep and operate two poker machines at the hotel depended on both two poker machine entitlements allocated in respect of the hotelier's licence and authorisation from the Authority. That ongoing permission could conventionally be described as a licence of the premises for the current year. By transferring one poker machine entitlement to Ms Perry and applying for approval, Alliance applied for removal of that licence from the hotel and contravened clause 4.11; on termination it was required by clause 4.10 to do all acts necessary to transfer the licence, including the...

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' 'Appellants pay the costs of the First and Second Respondents of the appeal.']