Nguyen [2011] NZLLA 80 (18 February 2011)

Last Updated: 11 March 2011

[2011] NZLLA 80-82

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of a hearing pursuant to s.132A of the Act into whether off-licence number 008/OFF/91/2007 issued to KIMBERLEY NGUYEN in respect of premises situated at Shop M, 185 Great South Road Manurewa, Auckland, known as “Southmall Liquor Bargain” should be suspended or cancelled

AND

IN THE MATTER of an application by KIMBERLEY NGUYEN pursuant to s.41 of the Act for renewal of an off-licence in respect of premises situated at Shop M, 185 Great South Road, Manurewa, Auckland, known as “Southmall Liquor Bargain”

AND

IN THE MATTER of an application by KIMBERLEY NGUYEN pursuant to s.123 of the Act for renewal of a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Mr P M McHaffie

HEARING at AUCKLAND on 7 February 2011

APPEARANCES

Mr M Coughlan – counsel for Ms Nguyen – applicant
Sergeant G J Campbell – NZ Police – in opposition
Mr P Radich – Auckland District Licensing Agency Inspector – in opposition

DECISION OF THE AUTHORITY

[1] There are three applications before the Authority the first is that the Authority has received a report under s.132A of the Act to the effect that Ms Nguyen, on 26 January 2010 was convicted on two occasions under s.165 of the Act of selling liquor at a time when her licence did not authorise the sale of liquor. She pleaded guilty to each charge and was fined on each charge $300 plus appropriate court costs.

[2] The other matters are application under ss.41 and 123 of the Act for the renewal of her off-licence and General Manager's Certificate. The off-licence expired on 27 November 2010 and the General Manager's Certificate expired on 23 June 2010. Each application was opposed by the Police and the Inspector because of the two convictions.

[3] Ms Nguyen pleaded guilty to each of the offences in respect of which the convictions were entered. Thus, in terms of s.132A(8) it is clear that the licensed premises were conducted in breach of the provisions of the Act. Section 132A(9) of the Act states that in such a case the Authority can make an order suspending the licence or cancelling it. However, s.132A(10) of the Act states that instead of making such an order the Authority may adjourn the hearing for such period as it thinks fit to give the licensee an opportunity to remedy any matters that the licensing authority may require.

[4] Section 45 of the Act sets out the criteria applicable in respect of the applications for the renewal of off-licences. The relevant matter in this case is the suitability of the licensee.

[5] Section 126 of the Act sets out the criteria applicable when considering applications for the renewal of manager’s certificates. In this case, the fact that the convictions are relevant.

[6] In respect of the facts leading to the two convictions, it is relevant that the relevant informations were laid as a result of a complaint.

[7] Ms Nguyen gave evidence. She arrived in New Zealand from Vietnam approximately 20 years ago. She purchased the business four years and eight months ago. To do so she obtained a loan from her family in the sum of $100,000. She also has a loan of approximately $50,000 from her bank. She uses her credit card which has a limit of $10,000 to provide overdraft facilities for the business. Thus her total liabilities in respect of the business are approximately $160,000.

[8] She is divorced with one 11 year old child. The child has “special needs” requirements. Ms Nguyen works from 9.00 am until 11.00 pm although she receives some assistance from her parents so that she can take a break for one or two hours during the afternoon.

[9] The licensed premises are leasehold. The present lease has two years to run with two rights of renewal of four years each. The premises comprise part of a block of shops one of which is empty. There are other empty shops in the area and the foot traffic in the vicinity of the shop is of an intermittent nature.

[10] The business has been on the market for sale.

[11] The business owns stock worth approximately $50,000.

[12] The business has been on the market for sale for over a year. During that period of time there has been little enquiry. The proposed sale price is $150,000 which was reached by Ms Nguyen upon the basis that this sum would be sufficient to enable her to repay her loans. The business trades at a loss and this situation is gradually getting worse.

[13] It is apparent to the Authority that Ms Nguyen is anxious to quit the business as soon as possible. However, she wishes to be able to repay her debts out of the proceeds of sale. The fact that the business trades at a loss is unlikely to assist in the sale of the business. Further, so long as it continues to trade at a loss Ms Nguyen’s financial situation will become steadily worse. Inevitably, this would encourage her to breach the Act in various ways, as has already happened.

[14] In these circumstances, it seems to the Authority that it is imperative that immediate steps be taken to sell the business at a realistic price. Ms Nguyen needs to take advice on this subject and act on it.

[15] If the Authority were to either suspend or cancel the licence, this would compound Ms Nguyen’s financial problems. However, the Authority considers it appropriate that the proceedings brought in terms of s.132A be adjourned for six months to enable a sale of the business to be effected.

[16] Further, given the questionable suitability of Ms Nguyen as a licensee the Authority is only prepared to renew both the off-licence and the General Manager's Certificate for a period intended to coincide with the adjournment of the s.132A proceedings.

[17] Accordingly:

• [a] The s.132A proceedings are adjourned to 8 August 2011;
  
• [b] The off-licence is renewed for eight months and 11 days expiring on 8 August 2011; and
  
• [c] The General Manager's Certificate is renewed for 13 months and 16 days expiring on 8 August 2011.
  

DATED at WELLINGTON this 18th day of February 2011

Maria Galvin
Deputy Secretary

Southmall Liquor.doc(aw)