Lopdell v Pink Cardie Co. Limited - Salvage [2000] NZLLA 175 (17 February 2000)

Last Updated: 26 February 2010

Decision No. PH 175 – 177/2000

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for cancellation of on-licence number 007/ON/62/98 issued to PINK CARDIE CO. LIMITED in respect of premises situated at Unit A, 118 Ocean View Road, Oneroa, Waiheke Island, Auckland City, known as “Salvage”

BETWEEN MICHAEL JOHN LOPDELL

(Police Officer of Auckland)

Applicant

AND PINK CARDIE CO. LIMITED

Respondent

AND an application by PINK CARDIE CO. LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at Unit A, 118 Ocean View Road, Oneroa, Waiheke Island, Auckland City, known as “Salvage”

AND an application by DEE PAEPAE ISAACS pursuant to s.123 of the Act for the renewal of a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J P Gatley
Members: Mr R J S Munro
Mr J W Thompson

HEARING at AUCKLAND on 9, 10 and 11 February 2000

APPEARANCES

Sergeant M J Lopdell – NZ Police – applicant for cancellation and in opposition to

renewals
Mr W J Perring – Auckland District Licensing Agency Inspector – in support of
application for cancellation and in opposition to renewals
Mr R M Gapes with Miss K Fraser for Auckland City Council
Mr G A Ireland with Mrs F E Ecclet for Pink Cardie Co. Limited and Mr D P Isaacs
Mr R A Walden as agent of Mr W S Meyer as objector to renewal of the on-licence

INTERIM DECISION

We have before us three applications:

1. By the Police pursuant to s.132 of the Act for cancellation of on-licence 007/ON/62/98 issued to Pink Cardie Co. Limited in respect of premises situated at Unit A, 118 Ocean View Road, Oneroa, Waiheke Island, Auckland City, known as “Salvage”.
   
2. By Pink Cardie Co. Limited pursuant to s.18 of the Act for renewal of the above on-licence.
   
3. An application by Dee Paepae Isaacs pursuant to s.123 for renewal of his General Manager’s Certificate.
   

By application dated 10 August 1999 Sergeant Lopdell sought cancellation of the on-licence on the grounds that the licensed premises have been conducted in breach of various provisions of the Act and conditions of the licence.

The grant of on-licence 007/ON/62/98 was authorised in an “on the papers” decision of the Authority (LLA 900/98) as a “bar/brasserie” style licence. We quote from that decision:-

“The applicant intends to sell liquor not only to any person who is present for the purpose of dining but also to any other person who is present on the premises. Nevertheless the applicant portrays the main part of the business as being the promotion and sale of food of a range and style detailed in a sample menu submitted. On that basis we accept that the premises will remain within the definition of a restaurant as defined in s.2 of the Act and that the sale of liquor will not be the principal business.”

During the 2½ day hearing we heard much evidence of intense animosity between Mr and Mrs Myer as the occupier of Unit J, 118 Ocean View Road and the licensee and staff of “Salvage”. The animosity has extended to incidents of assault by both Mr and Mrs Myer on Mr H E J Burbury, the sole director and shareholder in the licensee company, and his manager Mr D P Isaacs and retaliatory assaults. The exchanges have resulted in prosecutions in the District Court with some of those matters still pending. We also heard allegations of the licensee having operated “Salvage” in such a manner that the body corporate rules of Pendragon Mall have been breached. It is also alleged that the premises have operated in such a manner that noise restrictions of the Auckland District Plan have also been breached.

On the completion of evidence called by the Police, from Mr Burbury on behalf of the licensee and from Mr D P Isaacs, it was suggested by the Authority that what promised to be an extended hearing of the three applications could be curtailed, and some of the tensions between the licensee and the objector reduced, if the following course of action was taken.

The Authority would make an order pursuant to subs.(7) of s.132 adjourning the Police application for cancellation pending the licensee obtaining an unqualified certificate from the Auckland City Council, in terms of s.9(1)(e) of the Act, certifying that the proposed use of the premises as a restaurant meets requirements of the Resource Management Act 1991 and of the Building Code.

On receipt of such a certificate, and surrender of on-licence 007/ON/62/98, the Authority would simultaneously issue a replacement on-licence authorising the sale and supply of liquor, for consumption on the premises, to any person who is present on the premises for the purpose of dining, with trading hours limited to Monday to Sunday 7.00 am to 12.00 midnight. As with any other new licence the new restaurant style licence would issue for a period of 12 months.

At the same time Mr D P Isaacs’ General Manager’s Certificate would be renewed for a period of 12 months.

After an adjournment to allow Mr Ireland to take instructions from Mr Burbury and Mr Isaacs the above proposal was accepted by Mr Ireland on behalf of the licensee and manager. The proposal was also accepted by Sergeant Lopdell for the Police and Mr Perring as Inspector subject to the following undertaking being given on behalf of the licensee:-

(1) That immediate steps would be taken by Mr Burbury to reflect a change in the manner of operation of the premises from a bar/brasserie to that of a true licensed restaurant.

(2) That the closing time of 12.00 midnight would be observed from 11 February 2000.

(3) That it was accepted that the closing time of 12.00 midnight would be authorised on the basis that it would give the licensee the flexibility to trade until 12.00 midnight on Friday and Saturday evenings, and some other days throughout the year, but the licensee would in fact often close considerably earlier than 12.00 midnight.

The Authority can only make an order pursuant to subs.(7) of s.132 of the Act on being satisfied that any of the grounds in subs.(3) of s.132 have been established and that it is desirable that an order be made under the section.

Evidence adduced at the hearing satisfied the Authority on the balance of probabilities that the licensed premises known as “Salvage” have traded in breach of condition (b) of the licence in that liquor has been sold at “Salvage” at times when the premises were not being operated as a restaurant.

A final decision on these matters will issue following receipt of:-

1. The section 9(1)(e) certificate referred to above.
   
2. Written confirmation on behalf of the licence of the undertakings enumerated (1) to (3) above.
   

DATED at WELLINGTON this day of 2000

_____________________________
Judge J P Gatley
Chairman PinkCardie.doc(nl)