Tabcorp Manager Pty Ltd v Vancelow Pty Ltd & Ors [1997] FCA 761

FEDERAL COURT OF AUSTRALIA CONTRACTS - trial of separate issue - agreement between gaming operator and venue operator for installation of gaming machines in hotel - whether period of agreement five years or such lesser period as liquor licence subsisted Gaming Machine Control Act 1991 (Vic) s 1, s 18(2), s 7, s 3(1), s 11, s 19(1), s 19(3), s 25(1), s 25(2), s 25(5), s 26, s 27, s 30, s 68 Federal Court Rules O 29 r 2(a) Johnson v Moreton [1980] AC 37 TABCORP MANAGER PTY LTD -v- VANCELOW PTY LTD & ORS NO. VG 237 of 1997 HEEREY J MELBOURNE 11 AUGUST 1997:

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 237 of 1997 ) GENERAL DIVISION )

BETWEEN: TABCORP MANAGER PTY LTD

Applicant

AND: VANCELOW PTY LTD and OTHERS

Respondent

JUDGE: HEEREY J PLACE: MELBOURNE DATE: 11 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. Answer the questions to be tried pursuant to the Order made 2 July 1997 as follows: (i) Yes (ii) No 2. Question of costs adjourned for argument on a date to be fixed. 3. Affidavits to be relied on for the purposes of any argument as to costs to be filed and served within 14 days. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 237 of 1997 ) GENERAL DIVISION )

BETWEEN: TABCORP MANAGER PTY LTD

Applicant

AND: VANCELOW PTY LTD and OTHERS

Respondent

JUDGE: HEEREY J PLACE: MELBOURNE DATE: 11 AUGUST 1997

REASONS FOR JUDGMENT On 15 April 1992 the first respondent Vancelow Pty Ltd (Vancelow) entered into an agreement (the agreement) with the predecessor of the applicant (the TAB) for the installation and operation of twenty gaming machines at the Prince of Wales Hotel, 109 Church Street, Richmond. Clause 4 of the agreement provided that the agreement should ... take effect upon signing and shall continue in operation for a period of five (5) years from the date of granting of a Venue Operator's Licence to (Vancelow) or such other term as may be specified in the Licence. A venue operator's licence was granted to Vancelow on 12 December 1994. On 27 June 1996 Vancelow entered into an agreement for the sale of the hotel to the second respondent (Zagame). Pursuant to this agreement the liquor licence held by Vancelow was transferred to Zagame on 30 August 1996. By virtue of s 28(2)(a) of the Gaming Machine Control Act 1991 (Vic) (the Act) Vancelow's venue operator's licence was immediately cancelled. The TAB has brought an action, initially in the Supreme Court of Victoria but cross-vested to this Court, alleging that Vancelow has repudiated the agreement. Pursuant to an order under O 29 r 2(a) made on 2 July 1997 I am to try as a separate question the following: 1. Was the period of the agreement: (i) Five years (as averred in par 7 of the statement of claim); or (ii) Five years, subject to the provisions of the Gaming Machine Control Act ("the Act"), in particular s 26 and 28(2)(a) of the Act, the effect of which was five years or such lesser period during which the liquor licence of the hotel subsisted (as averred in pars 5 and 8 of the defence of the first respondent). (There was a second question but it does not presently arise.) The Legislation Relevantly to the present case the purpose of the Act, as stated in s 1, is ... to establish a system for the regulation, supervision and control of gaming machines and gaming equipment with the aims of -