Polish Club Limited v Gnych [2014] NSWCA 321

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Polish Club Limited v Gnych [2014] NSWCA 321 Hearing dates: 29 July 2014 Decision date: 16 September 2014 Before: Meagher JA at [1]; Leeming JA at [2]; Tobias AJA at [3] Decision: 1. Grant leave to appeal, if such leave is necessary. 2. Grant leave to the appellant to amend its Notice of Appeal to add a new ground of appeal relating to the licence referred to in Declaration 2 made by Ball J on 30 September 2013. 3. Appeal allowed in part. 4. Set aside Declarations 1 and 2.4 and Orders 4 and 5 made by Ball J on 30 September 2013. 5. Direct the parties to file written submissions within seven days as to whether Declaration 2 and Order 3 made by Ball J on 30 September 2013 should remain unaffected by this judgment, and if they should, whether Declaration 2.2 should be deleted and the following substituted: "The licence to subsist for a term of five years as and from 31 March 2012." 6. Order that the respondents pay two-thirds of the appellant's costs of and incidental to the proceedings at first instance. 7. Order that the respondents pay two-thirds of the appellant's costs of the summons for leave to appeal and the appeal but to have with respect to those costs a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LIQUOR LAW - lease of licensed premises of a registered club - whether lease granted in breach of Liquor Act 2007 s 92 - effect of breach of s 92(1)(d) - whether the statutory purpose of the Liquor Act can be fulfilled without rendering the lease void and unenforceable