Boreland v Docker & Ors [2007] NSWCA 94

Boreland v Docker & Ors [2007] NSWCA 94

The correspondence dated 12 May and 12 September 2005 varied the lease to a fixed term ending on 31 August 2007. Clause 7.2 obliged the appellant, on termination of the lease, to transfer the poker machine entitlements attached to the hotelier's licence at the commencement of the lease to the respondents. Clause 23.2 did not create a beneficial entitlement in the respondents. There was no restriction on dealing with the entitlements during the lease subject to statutory requirements.

Jurisdiction
Australia
Judgment Date
24 April 2007
Procedural Posture
Appeal / Court of Appeal Decision, Following Decision of Supreme Court Equity Division
Outcome
Appeal allowed in part
Legal Topics
['lease Variation' 'offer and Acceptance' 'construction of Commercial Contracts' 'transfer of Statutory Entitlements' 'assignment of Lease' 'poker Machine Entitlements' "hotelier's Licence"]
['contract Law' 'property Law' 'liquor & Gaming Regulation'] ['lease Variation' 'offer and Acceptance' 'construction of Commercial Contracts' 'transfer of Statutory Entitlements' 'assignment of Lease' 'poker Machine Entitlements' "hotelier's Licence"]

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Procedural Posture

Appeal / Court of Appeal Decision, Following Decision of Supreme Court Equity Division

Legal Issues

  1. 1 ['Whether there was a valid variation of the lease term by correspondence between 12 May 2005 and 12 September 2005' 'Whether the lease required the transfer of poker machine entitlements to the respondents at the end of the lease' 'Proper construction of clauses 7.2 and 23.2 of the lease']

Ratio Decidendi

The correspondence dated 12 May and 12 September 2005 varied the lease to a fixed term ending on 31 August 2007. Clause 7.2 obliged the appellant, on termination of the lease, to transfer the poker machine entitlements attached to the hotelier's licence at the commencement of the lease to the respondents. Clause 23.2 did not create a beneficial entitlement in the respondents. There was no restriction on dealing with the entitlements during the lease subject to statutory requirements.

Court Disposition

Appeal allowed in part

Orders

  • ['Set aside Orders 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11' 'Vary declaration in Order 5: appellant is obliged upon determination of lease to transfer poker machine entitlements to respondents' 'Declare that letters dated 12 May and 12 September 2005 varied the lease to a fixed term ending 31 August 2007' 'Liberty to...