Miller v Neptunes Cafe & Bar Limited [2005] NZLLA 131 (16 March 2005)

Last Updated: 21 February 2010

Decision No. PH 131/2005

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/534/2003 issued to NEPTUNES CAFÉ & BAR LIMITED in respect of premises situated at Princes Wharf, 137-147 Quay Street, Auckland, known as “Neptune’s Café & Bar”

BETWEEN ANTHONY JAMES MILLER

(Police Officer of Auckland)

Applicant

AND NEPTUNES CAFÉ & BAR LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 3 March 2005

APPEARANCES

Mr R G Poole - NZ Police - applicant
Mr D G Scott - agent for respondent

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application for the cancellation of an on-licence issued to a company known as Neptunes Café & Bar Limited. The company trades at premises at Princes Wharf known as “Neptunes Café & Bar”.

[2] The application was filed with the Authority on 3 December 2004. The grounds for the application are that the premises are being conducted in breach of s.8 of the Act, and that the licensee’s conduct has been such as to show that it is not a suitable entity to hold the licence.

[3] The allegations in support of the application were that the company was struck off the Companies Register on 16 July 2003. There is no provision for a struck off company to hold an on-licence under s.8 of the Act. A further allegation is that the company had continued to sell liquor under the licence, since it had been struck off.

[4] The Police have noted that very shortly after the application was filed and served, the company was reinstated back on the Companies Register. Mr Scott has pointed out that the fact that the company was struck off was an error and/or omission, rather than the result of any deliberate action. The company had continued to trade, and pay its tax and GST in a normal way.

[5] In those circumstances the parties have reached an accommodation. It should also be recognised that in the interim period, the business has been subleased. An application for a temporary authority to carry on business by the sub-lessee has been filed with the Agency. There is a minor concern in that there is no consent from the landlord, because the building in which the premises are located, has been sold. However Mr Scott is attempting to have the temporary authority granted in time for the proposed changeover which is due to take place on 10 March 2005.

[6] In the light of the fact that the business was struck off the register, and continued to trade, Mr Scott has offered on behalf of his client company a suspension period of three days. This offer to resolve the issue has been accepted by the applicant.

[7] Mr Scott has given an undertaking that once the on-licence has been granted to the new sublessee, then the current licence being 007/ON/534/2003 will be surrendered.

[8] On the basis of that undertaking, the application is now granted. The current on-licence issued to Neptunes Café & Bar Limited will be suspended for three days commencing on Monday 7 March 2005 at 7.00 am.

DATED at WELLINGTON this 16th day of March 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

Neptunes Café.doc(aw)