E T Trading Limited and Bridge Storage MB Limited [2005] NZLLA 693 (7 November 2005)

Last Updated: 29 January 2012

Decision No. PH 693/2005

PH 753/2005-
PH 754/2005

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by E T TRADING LIMITED pursuant to s.9 of the Act for an on-licence in respect of premises situated at 263 East Tamaki Road, Otara, Manukau City, known as “Wanderers Club East Tamaki”

AND

IN THE MATTER of applications by BRIDGE STORAGE MB LIMITED pursuant to ss.9 and 31 of the Act for on and off-licences in respect of premises situated at 263 East Tamaki Road, Otara, Manukau City, known as “Cheep Liquor”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at MANUKAU on 27 September 2005

APPEARANCES

Mr G W Halse – for applicants
Mr P A Radich – Manukau District Licensing Agency Inspector – in opposition
Constable I L Willetts – NZ Police – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority are three opposed applications for on and off-licences in respect of two separate premises in the one building. The applications arise from the acquisition of the existing businesses from the Otara Licensing Trust in June 2004. The businesses currently trade under the name of “Wanderers Club East Tamaki” and “Cheep Liquor”. The original purchaser was a company known as E T Trading Limited. However, more recently a second company known as Bridge Storage MB Limited has taken over the day to day operation of the business known as “Cheep Liquor”.

[2] E T Trading Limited is a private company owned by family trusts. The directors are Mark Patrick Walsh and his parents, Patrick Timothy Walsh and Noeline Mary Walsh. Bridge Storage MB Limited is similarly structured. The aforesaid members of the Walsh family have extensive experience in the hospitality industry. The two businesses were acquired following an approach from the Otara Licensing Trust, and they commenced trading under temporary authorities.

[3] Mr Douglas Greame Scott has been a liquor licensing consultant for over 20 years. He trades under his company name Liquor Licensing Consultants Limited. He has represented the Walsh family licensing interests since 1991. He was involved in the obtaining of the temporary authorities to carry on the businesses. He was instructed to prepare the substantive applications for the on and off-licences, and these were signed in December 2004. By this time, further temporary authorities had been granted which allowed trading until 29 March 2005.

[4] There was a problem in obtaining the landlord’s consent to the applications. This is one of the documents which must be provided as required by the Sale of Liquor Regulations 1990. The landlord’s representative was apparently overseas, and its solicitors had been written to in December 2004. No reply was received. A telephone call was made and a facsimile was sent, both without success.

[5] The evidence shows that Mr Scott did not make any further application for further temporary authorities on or before 29 March 2005. As a consequence both premises began to trade illegally from that day. Mr Scott gave evidence that he had been used to a system whereby the District Licensing Agency send out reminders that the temporary authorities are about to expire. It is possible that there was a change of policy in the Agency at about this time. The lack of any authority to sell liquor seems to have gone on unnoticed until May 2005, when the Police became aware of the situation.

[6] The Police visited the premises on 10 May 2005, along with the District Licensing Agency Inspector. On being made aware of the situation, the manager closed the premises immediately. The companies promptly took a number of steps to ensure that the businesses could start trading again. Further applications for temporary authorities were filed on 11 May 2005. Because of the previous lack of progress with the filing of the substantive licence applications, and the fact that the premises had traded illegally for 42 days, and concerns about the management of the businesses, the applications for temporary authorities were initially opposed.

[7] The companies’ agent sent out letters the following day showing that nine members of staff all holding General Manager’s Certificates had been appointed to manage the premises. On 16 May 2005, a meeting was held between the proposed licensees and their agent Mr Scott, together with representatives from the Police and District Licensing Agency. Following the meeting, the opposition to the temporary authorities was withdrawn, and new temporary authorities were granted. However, the businesses had been closed for seven days with a consequential and substantial loss of income.

[8] The necessary consents were promptly signed by the landlord’s solicitor and the substantive applications which were dated 9 December 2004, were filed on 12 May 2005.

The Applications

[9] All three applications included all the necessary details. No changes to the conditions of the previous licences were sought. Each application contained a certificate from the Manukau City Council confirming that the proposed businesses met the requirements of the Resource Management Act 1991.

[10] The applicants sought to have trading hours as follows:

“Wanderers Club East Tamaki” On-licence Monday to Sunday

9.00 am to 3.00 am the following day

“Cheep Liquor” On-licence Monday to Sunday 9.00 am to 11.00 pm

“Cheep Liquor” Off-licence Monday to Saturday 9.00 am to 11.00 pm

Sunday 9.00 am to 10.00 pm

[11] These hours were exactly the same as the hours enjoyed by the previous licensee except that the opening hour has been brought forward from 7.00 am to 9.00 am. Public notification of the applications did not attract any opposition from members of the public. Both the District Licensing Agency Inspector, and the Police opposed the applications, and accordingly the matters were set down for a public hearing.

The Objections

[12] Paul Anthony Radich is a warranted Liquor Licensing Inspector employed by the Manukau District Licensing Agency. He confirmed that the basis of the opposition to the grant of the licences was:

• (a) The sale of liquor to minors. These incidents were both as a result of a controlled purchase operation.
  
• (b) That the three premises had traded for 42 days without licences in breach of sections 151,152 and 153 of the Act.
  

(c) The substantial delay in applying for the licences requiring the issue of four temporary authorities.

[13] Ian Leonard Willetts is a Police Officer working in the Counties Manukau District Licensing Unit. His concerns were along the same lines as set out by Mr Radich. He contended that the directors did not take a hands-on approach. However, Mr M P Walsh explained that either he or his father was available to be on the premises every day of the week. As Mr G W Halse pointed out, the requirement of the Act is that a certificated manager be present when liquor is being sold. He accepted that another associated business had agreed to a suspension of its licence following breaches of s.168 (1)(a) of the Act.

[14] Both Constable Willetts and Mr Radich argued that the trading hours should be cut back to 1.00 am because there was no evidence that an exemplary management regime had been operating. In his closing submissions, Mr Radich produced relevant extracts from the Manukau City Council Strategy. This document allows for 3.00 am closures in the Manukau City Centre, Business 3 zone.

The Authority’s Decision and Reasons

[15] In considering applications for on and off-licences the Authority is directed by ss.13(1) and 35(1) to have regard to a number of matters. The relevant issues in these cases are the suitability of the applicants, the days on which and the hours during which the applicants propose to sell liquor, and the reports received from the Police and District Licensing Agency.

[16] As Mr Halse pointed out, in Re Sheard [1996] NZAR 61 Justice Holland made the following comments.

“To refuse an application for an on-licence on grounds of suitability the Authority has to be satisfied on the balance of probabilities that the character of the applicant has been shown to be such that he is not likely to carry out properly the responsibilities that go with the holding of a licence.”

[17] We should state at the outset that we are perfectly satisfied that the applicant companies will respect the Act and the conditions of the licences. In our view, the failure to apply for a temporary authority was a genuine mistake, and the consequential illegal trading lacked any form of malice or intent. The companies more than paid for the error, when their businesses were closed for a week. Furthermore, we accepted the explanation for the delay in filing the substantive applications. It seemed to us that the companies and their agent did their best to obtain the landlord’s consent to the proposals.

[18] We accept that over the past 12 months there have been three incidents where the Act has been breached, although one related to an associated company. These breaches could reflect on the suitability of an applicant. However, the companies have co-operated fully in the processing of the enforcement applications, and suspension orders have been agreed. The companies are some way from reaching the threshold where cancellation or refusal to grant a licence would be considered.

[19] We were impressed with Mr Walsh’s attitude, and we are confident in his ability to operate the three businesses in accordance with the conditions of the licences. In Christchurch District Licensing Inspector and another v Karara Holdings Limited and others NZAR [2003] 752, the Court commented on the scheme of the Act as follows:

“Parliament has declared that the Act’s system of controls over the sale and supply of liquor should be administered so as to contribute to the reduction of liquor abuse in the community within the limits of their capacity to do so. The stipulation that the object of the Act is to establish a reasonable system of control reflects that legislative perception. It also implicitly recognises that if the administration of the Act’s licensing system becomes too heavy-handed, so that it unreasonably inconveniences those wishing to purchase and consume liquor in a manner not giving rise to abuse, that result would be inconsistent with the statutory object.”

[20] We believe that it would be unreasonable to refuse the applications, and unreasonable to curtail the hours of trading particularly given the absence of claims of disorderly conduct or neighbouring land use concerns. Mr Halse referred to the provisions of s.10(4) of the Act. This provides that objections to a new application can only be based on the suitability of the applicant, where the applicant is seeking a licence for premises which are already licensed, and no change in the licence conditions is sought. The section does not apply to reports filed by the Police or District Licensing Agency. Nevertheless, there is insufficient proof of poor management to warrant any change to the existing conditions of the licences.

[21] We are satisfied as to the remaining matters to which we must have regard as set out in ss.13 (1) and 35 (1) of the Act. Given that the applicants are suitable, and that there are valid Resource Management Act certificates, then liquor licences are appropriate. We grant E T Trading Limited and Bridge Storage MB Limited an on-licence for the sale and supply of liquor for consumption on the premises, to any person present on the premises. We also grant Bridge Storage MB Limited an off-licence for the sale and delivery of liquor on or from the premises to any person for consumption off the premises.

[22] The hours of trading will be:

“Wanderers Club East Tamaki” On-licence Monday to Sunday

9.00 am to 3.00 am the following day

“Cheep Liquor” On-licence Monday to Sunday 9.00 am to 11.00 pm

“Cheep Liquor” Off-licence Monday to Saturday 9.00 am to 11.00 pm

Sunday 9.00 am to 10.00 pm

[23] Copies of the licences setting out the conditions to which the licences will be subject are attached to this decision. These conditions will mirror the conditions in the current licences.

[24] The licences will not issue until the expiry of 20 working days from the date of this decision. That period is the time provided by s.140 of the Act for the lodging of a notice of appeal. The applicants are not entitled to sell liquor until the licences issue.

[25] The applicants’ attention is drawn to ss.25, 48 and 115 of the Act obliging the holders of on and off-licences 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; and
  
• (c) At all times when the manager is on duty his or her name shall be prominently displayed inside the premises so as to be easily read by persons using the premises.
  

DATED at WELLINGTON this 7th day of November 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

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