Whittle v Yang Fang Limited [2007] NZLLA 1317 (18 December 2007)

Last Updated: 29 January 2012

Decision No. PH 1317/2007

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 suspension or cancellation of on-licence number 007/ON/085/2005 issued to YANG FANG LIMITED in respect of premises situated at 248a Dominion Road, Mount Eden, Auckland, known as “Yang Fang Restaurant”

BETWEEN GARY SELWYN WHITTLE

(Auckland District Licensing Agency Inspector)

Applicant

AND YANG FANG LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms J D Moorhead

HEARING at AUCKLAND on 5 December 2007

APPEARANCES

Mr G S Whittle – Auckland District Licensing Agency Inspector – applicant
No appearance by or on behalf of the respondent
Sergeant J P Loye – NZ Police – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application brought by Mr G S Whittle, an Auckland District Licensing Agency Inspector, for the suspension or cancellation of an on-licence issued to Yang Fang Limited in respect of premises situated in Dominion Road in Mount Eden known as “Yang Fang Restaurant”.

[2] The licence was issued to Yang Fang Limited on 19 February 2004, and permits liquor to be sold only when the premises are being operated as a restaurant, and between the hours of Monday to Sunday, 11.30 am to 3.00 am the following day.

[3] The application is brought on the grounds that the premises are being conducted in breach of ss.165 and 172A of the Act, and also in breach of a condition of the licence. The particular condition alleged to have been breached is the condition that the licensee must have available for consumption on the premises a reasonable range of low-alcohol beverages as well as non-alcoholic refreshments.

[4] The application was duly served on J L W Consultants Limited who are the agents for the respondent company. When the application was served the District Licensing Agency was rung by the agent. A director of the consultancy firm indicated that she was unsure if Yang Fang Limited still owned the restaurant. She was of the opinion that the restaurant had been sold.

[5] The evidence shows that on 2 August 2007, Sergeant Jason Peter Loye visited the premises along with Mr Gary Whittle. He noted that at the time there were no low-alcoholic beverages available. He also noted that the duty manager was shown as Shu Wang. He made enquiries to find Ms Wang. However there were difficulties with language, and it was eventually revealed that that person was not on the premises. There was a General Manager’s Certificate displayed on the wall in the name of Shu Wang with an expiry date of 17 May 2007.

[6] The Sergeant noted that communication with the staff was next to impossible.

[7] Mr Whittle gave evidence that no application for the renewal of the certificate had been lodged, and no other certificated manager had been appointed.

[8] He also noted that when he searched the company on 20 February 2007 it had been struck off the register. It is our view that once a company is struck off the Companies Register, there is no legal entity which is available to hold the licence.

[9] Mr Whittle wrote to the company through JLW Consultants Limited to confirm the absence of low-alcohol beer, and to confirm that there was no current manager. He advised that no new appointment had been received and confirmed that the company had been struck off. He requested that all liquor be removed from the premises and confirmed that an application for cancellation would be lodged.

[10] There was no response to the letter.

[11] On 14 September last, Mr Whittle revisited the premises. At that time there was no on-licence or duty manager’s name displayed. There were about a dozen bottles of Chinese beer known as “Snow” displayed for sale. Mr Whittle produced one of the bottles showing that it contained 4% alcohol by volume.

[12] Mr Whittle had further difficulty in communicating with members of the staff. He thought at one stage that he was speaking to Juan Li who might well have been the owner. He is not shown as a director or shareholder of Yang Fang Limited.

[13] In the circumstances, we are satisfied that the premises have been conducted in breach of ss.165 and 172A of the Act.

[14] We are satisfied that the company has breached the condition of its licence which requires it to have low-alcohol beverages available for consumption.

[15] We are also satisfied that the company is currently no longer suitable to hold the licence for the reasons stated above. In all circumstances, and taking into account the non-appearance of the company, on-licence number 007/ON/085/2005, issued to Yang Fang Limited, will now be cancelled.

DATED at WELLINGTON this 18th day of December 2007

B M Holmes
Deputy Secretary

Yang Fang Limited.doc(aw)