MASTERS v GARCIA [NO. 2] [2006] NSWCA 15

Reported Decision : 65 NSWLR 92

New South Wales 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