Kiwi Legends Limited, re [2003] NZLLA 97 (28 February 2003)

Last Updated: 20 February 2010

Decision No. PH 97/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by KIWI LEGENDS LIMITED pursuant to s.9 of the Act for an on-licence in respect of premises situated at 10 Dee Street, Invercargill, known as “Kiwi Legends”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at INVERCARGILL on 18 February 2003

APPEARANCES

Mr R J Ashby – on behalf of the applicant
Ms D M McDonald - Invercargill District Licensing Agency Inspector – to assist
Sergeant P Stratford – New Zealand Police – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Kiwi Legends Limited for a new on-licence in respect of premises situated at 10 Dee Street, Invercargill. The premises when completed and operating, will be known as “Kiwi Legends”. The application is for a restaurant business, and the primary business will be for the provision of food. The company is owned by Mr Robert John Ashby. Mr Ashby has been involved in the hospitality industry for over 10 years. He has a General Manager’s Certificate. There are no objections to his suitability either from the Police or the District Licensing Agency Inspector. A Resource Management Certificate, pursuant to s.91(e) of the Sale of Liquor Act 1989 has been received, indicating that the restaurant/bar function centre meets the requirements of the Resource Management Act 1991.

[2] The application when advertised drew one objection from a company known as Wellesley Land Company Limited. This company is owned by a Mr Louis Crimp. The objection filed by Mr Crimp made serious allegations against Mr Ashby, the sole director and shareholder of the applicant company. The allegations related to Mr Ashby’s suitability. Mr Ashby responded with an affidavit in which he countered the three main allegations in the objection. Pursuant to s.106 of the Act, where an objection is filed within the prescribed time, the Authority or the Agency must convene a public hearing to consider the application, unless the application is withdrawn, or after considering it, the Authority or the Agency believes that the objection is vexatious, or based on grounds outside the scope of the Act.

[3] Mr Ashby through his solicitors, took the view that the objection was vexatious. It was our view that we could not make that finding on the papers, although in retrospect, the objection may well have been just that.

[4] On 24 January last, Mr Crimp applied for an adjournment of the application because of an unspecified matter which required his attendance in Auckland in February. The application was refused. When preparations were being made for the public hearing of this application, Mr Crimp appeared and completed the appropriate paperwork. At the last moment he withdrew the company’s objection.

[5] As Mr Smith has submitted, Mr Ashby and his company have been required to carry out a considerable amount of extra work in preparation for this hearing. Such preparation could have been avoided. Mr Smith has made an application for costs. We have advised him that if he wishes to pursue that application, he will need to do so pursuant to the Commissions of Inquiry Act 1908. A copy of any such application will have to be served on Mr Crimp’s company.

[6] In the meantime, looking at the application, we are required to consider the criteria listed in s.13(1) of the Act. Having considered these criteria, we are in no doubt that the application should be granted. The only outstanding matter at this time is the final building certificate. We understand that there is some work yet to be completed. As soon as the certificate has been granted the licence can be issued in the terms sought.

[7] A copy of the licence setting out the conditions to which the licence is subject is attached to this decision.
[8] The licence will not issue until all relevant clearances have been obtained. We note that the Inspector will provide a full report upon a full inspection of the completed premises. The applicant is not entitled to sell liquor until the licence issues.

[9] The applicant’s attention is drawn to s.25 of the Act obliging the holder of an on-licence to display:

(a) A sign attached to the exterior of the premises so as to be easily read by persons outside each principal entrance, stating the ordinary hours of business during which the premises will be open for the sale of liquor, and

(b) A copy of the licence, and the conditions of the licence, attached to the interior of the premises so as to be easily read by persons entering through the principal entrance.

DATED at WELLINGTON this 28th day of February 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Kiwi Legends.doc(afw)