Silver Bell Market, re [2004] NZLLA 614 (6 September 2004)

Last Updated: 24 November 2010

Decision No. PH 614/2004 –
PH 616/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER Resumption of rehearing of an application pursuant to s.132 of the Act for variation of off-licence number 007/OFF/041/2001 issued to FORTUNE ON INVESTMENT LIMITED in respect of premises situated at 79-85 Dominion Road, Auckland known as “Silver Bell Market”

AND

IN THE MATTER of an application by FORTUNE ON INVESTMENT LIMITED pursuant to s.41 of the Act for renewal of an off-licence in respect of premises situated at 79-85 Dominion Road, Auckland known as “Silver Bell Market”

AND

IN THE MATTER of an application by FORTUNE ON INVESTMENT LIMITED pursuant to Regulation 10(3) of the Sale of Liquor Regulations 1990 for the authority to sell or supply liquor in or from a reduced area of the premises situated at 79-85 Dominion Road, Auckland known as “Silver Bell Market”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 26 August 2004

APPEARANCES

Mr P Swain - for applicant
Mr G Whittle - Auckland District Licensing Agency Inspector - in opposition
Constable N Nelson - NZ Police - in opposition

ORAL DECISION

[1] There are three matters currently before the Authority. The first is the resumption of hearing relating to a s.132 application for the variation of an off-licence issued to Fortune on Investment Limited.

[2] When the matter last came before the Authority in August 2003, we issued a decision in which we adjourned the proceedings for six months to allow the respondent an opportunity to make the necessary changes to its business to comply with the conditions of its licence. We noted that if the Inspector reported that the necessary changes had not been made, then the matter would be set down for a further hearing. We said that if the respondent was given an opportunity to make the licence legal, and did not accept that opportunity, we would be forced to issue an order amending the licence.

[3] On consideration of the matter, the respondent in considering the adjournment, made an application for redefinition of the premises. As we understand the application, the intention was to install a separate till and checkout in a separate area of the supermarket. This was to become a stand alone liquor retail outlet. In this way it was hoped that the liquor which was being sold could include such matters as Asian liquor.

[4] The application was opposed by the Police and the District Licensing Agency Inspector on the basis that the same company which was operated as a supermarket, would be operating as a stand alone liquor outlet. The Police and the Inspector believed that this was a breach, or unlawful circumvention of the provisions of s.36 of the Act, preventing any supermarket from selling liquor other than beer and wine.

[5] Mr Swain has accepted that a new company may be appropriate to operate the off-licence. Apparently there is already in existence, a company owned by the licensee, which operates as a separate off-licence. It may well be that that company will make a further application for a new off-licence, and it may well be that the application will then not be opposed. If that is the case, then the application pursuant to s.132 need be taken no further.

[6] The third matter is an application by Fortune on Investment Limited for the renewal of its off-licence. If the new company is successful in obtaining an off-licence, that application will not be proceeding.

[7] The Police raised two other matters at the hearing. The first was that Fortune On Investment Limited is an overseas company. It is alleged that the company has never applied to carry on business in New Zealand as required by the Companies Act. Because that has not happened, it is believed that the company is unable to trade in this country. Furthermore both the Inspector and the Police believe that a separate company known as Silver Bell Trading Company Limited is the company that is trading from the premises in Dominion Road. That company does not hold a licence to sell liquor. Both the Inspector and the Police have established by purchases, that the GST number refers to a company known as Silver Bell Trading Company Limited.

[8] If that is the case, it is the view of the Police and the Inspector that the business is trading without a licence, and that liquor should accordingly be removed until such time as the legal position is tidied up, and a new off-licence issued.

[9] Accordingly the proceedings are now adjourned for two months to enable Mr Swain to obtain instructions to see if all outstanding matters can be resolved. The matter will be set down for a further public hearing at the request of either party on seven days notice.

DATED at WELLINGTON this 6th day of September 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Silver Bell Market.doc(afw)