NSW Caselaw
Reported Decision: (2007) NSW Conv R 56-182(2007) Aust Contract Reports 90-256 Appeal Outcome: Special leave refused with costs by the High Court - 15 June 2007
New South Wales Court of Appeal
CITATION: Boreland v Docker & Ors [2007] NSWCA 94
HEARING DATE(S): 13 March 2007
JUDGMENT DATE: 24 April 2007
JUDGMENT OF: Mason P at 1; Beazley JA at 2; Ipp JA at 137
DECISION: 1. Allow the appeal in part;; 2. Set aside Orders 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11;; 3. Vary the declaration made in Order 5 so as to provide that the appellant is obliged upon the determination of the lease to transfer the poker machine entitlements to the respondents;; 4. Declare that by letters between the appellant and the respondents dated 12 May 2005 and 12 September 2005, the lease entered into by the parties on 1 August 2003 was varied so as to provide for a fixed term ending on 31 August 2007;; 5. Liberty to the respondents to apply for injunctive relief, either on an interlocutory or final basis;; 6. Direct the appellant and respondents to file within seven days agreed minutes of order in respect of the costs orders to be made both at first instance and on the appeal. If there is no agreement, then within 14 days of today's date the appellant and respondents are to file written submissions in respect of costs.
CATCHWORDS: Contract – lease – offer and acceptance – ambiguity in terms of offer – use of surrounding circumstances – use of pre-contractual conversations - Contract – lease – offer and acceptance – deviation from offer – whether deviation for sole benefit of offeror - Contract – lease – variation - offer and acceptance – construction of offer – offer must correspond with acceptance – whether trial judge erred in construction of offer - Liquor Law – poker machine entitlements – entitlements attach to hotelier's licence – transfer of poker machine entitlements must accord with Gaming Machines Act 2001 (NSW) - Liquor Law – poker machine entitlements as a species of property – rights to poker machine entitlements – as respondents not holders of hotelier's licence rights only created by contract or trust - Liquor Law – hotelier's licence not property – no beneficial ownership in hotelier's licence
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