Aashi Ventures Limited v Police

[2023] NZHC 3457

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-000324

[2023] NZHC 3457

UNDER

the Sale and Supply of Alcohol Act 2012

IN THE MATTER OF

An appeal pursuant to s 162 against a decision of the Alcohol Regulatory and

Licensing Authority refusing to renew the off-licence for premises known as

“Smugglers Liquor Nawton”

BETWEEN

AASHI VENTURES LIMITED

Appellant

AND

NEW ZEALAND POLICE

First Respondent

MEDICAL OFFICER OF HEALTH (WAIKATO)
Second Respondent

SARAH THOMSON

Third Respondent

Hearing:

On the papers

Counsel:

MD Branch for Appellant

AG Sherriff for First and Second Respondents GJ Hewison for Third Respondent

Judgment:

30 November 2023

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 30 November 2023 at 3 pm

pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Harkness Henry, Hamilton. Buddle Findlay, Wellington.

Community Law Waikato, Hamilton. GJ Hewison, Auckland.

AASHI VENTURES LTD v POLICE [2023] NZHC 3457 [30 November 2023]

A stay pending appeal?

[1]                 This brief judgment addresses an application for a stay pending appeal. Time is of the essence. Unless a stay is granted, the licence will expire tomorrow, at 10 pm.

Background

[2]                 Aashi  Ventures Ltd1 holds an off-licence2  (to  sell  alcohol)  at Smugglers Liquor Nawton, a bottle store at 22 Durham Street, Hamilton.

[3]                 On 31 October 2022, the Hamilton District Licensing Committee3 declined Aashi Ventures’ application to renew the licence.4 The Committee concluded the company should not continue to hold a licence because:

(a)The community in which it operated was vulnerable, in turn elevating the threshold.

(b)Employment discrepancies had been identified within Aashi Ventures, including failures to pay the minimum wage, and failures to pay or provide entitlements under the Holidays Act 2003. Seven discrete breaches were acknowledged by the company. The Committee considered the breaches “moderately serious”.5

(c)Aashi Ventures and Sushma Kansal, its sole director, exhibited “a lack of understanding about the vulnerable and highly deprived nature of the [local] community especially concerning the link between products sold and the possibility of alcohol related harm”.6

(d)The company had made sales of single-serve products, particularly high alcohol products oriented at young people.

1      Aashi Ventures.

2      The licence.

3      The Committee.

4      Aashi Ventures Ltd v Police [2023] NZARLA 187.

5 At [70].

6 At [60].

[4]                 Aashi Ventures appealed to the Alcohol Regulatory and Licensing Authority.7 The company was granted a stay pending appeal.

[5]                 On 1 November 2023, the Authority dismissed the appeal. The Authority gave Aashi Ventures one month “to make arrangements to accommodate [its] decision”.8

[6]                 Aashi Ventures’ appeal to the Authority appears to have been wide-ranging. Its notice of appeal identified 24 separate grounds. The Authority concluded the matters identified by the Committee presented “an overall picture of sustained systemic failures across the appellant’s various businesses and a problem when weighed against the criteria in s 131 and the purpose and object of the Act”.9

[7]                 Aashi Ventures has filed an appeal in this Court on questions of law. The appeal cannot be heard until sometime next year. As observed, the licence expires tomorrow. Given all this, the parties agreed I should determine the application for a stay on the papers.

A précis of the case for a stay

[8]                 On behalf of the company, Mr Branch contends a stay is needed to ensure the appeal will not be rendered nugatory. Mr Branch says unless a stay is granted, the store will need to close immediately; the three employees will be made redundant; and Aashi Ventures’ income will disappear. Goodwill will also be lost, for, customers will go elsewhere.

[9]                 Mr Branch contends viable questions of law exist, including whether the Authority was correct to lift the corporate veil to consider companies related to  Aashi Ventures, Ms Kansal, or both.

[10]             Another probable ground of appeal concerns single sales. Some committees appear to treat such sales differently from other committees.

7      The Authority.

8      Aashi Ventures Ltd v Police, above n 4, at [73]; and Sale and Supply of Alcohol Act 2012, s 135(2).

9 At [73].

[11]             Mr Branch argues no evidence exists of any actual harm in connection with a single sale by Aashi Ventures.

[12]             Mr Branch contends a stay will not be injurious to the public interest. He contends there is no evidence of any alcohol-related harm arising in connection with the stay pending the appeal to the Authority.

Principle

[13]             Katz J summarised attendant principle in Lyger Investments  Ltd v  Young.10 In very short, it is for the party seeking a stay to persuade the Court one should be granted. Various considerations are relevant, including the apparent strength of the appeal, the consequences in the absence of a stay—and with it—and the public interest. Justice must be assessed in the round.

Analysis

[14]             Aashi Ventures  has not persuaded me a stay is warranted pending appeal.     I make six points.

[15]             First, while I accept the consequences outlined by Mr Branch may come to pass—and this consideration supports a stay—Aashi Ventures has not been entirely forthcoming about its situation. Ms Kansal made an affirmation in support of the stay. She said:

The closing of the store will create financial issues for me and my family. I rely on the income from the store to pay the mortgage on the building. I also use the income to support two of my children who rely on me. One is at High School and the other at University and both are financially dependent on me.

This decision has made things very hard for me and my family and the company. I am a single parent who is working hard to provide a future for my children after the death of my husband. I am hard working and responsible.

I have three children and they have seen the stress I have been under during this ordeal. The negative publicity in the media has been incredibly distressing for me and my children.

I am asking for the opportunity to continue to trade until the outcome of the appeal to the High Court. Because the authority has given only one month for

10     Lyger Investments Ltd v Young [2018] NZHC 3222.

the store to be closed and I understand that the High Court will not have time to hear the appeal before this time, I ask that I not be prejudiced by this.

[16]             Ashleigh Mail, an alcohol licensing inspector, swore an affidavit in opposition. Ms Mail’s affidavit identifies assets in connection with Aashi Ventures, Ms Kansal, and related companies. In summary, these appear substantial. This led to Ms Kansal making an affirmation in reply, in which she says:

It is correct that myself or my companies are the registered owners of several properties with a combine value of approximately $13 million, however there are mortgages of approximately $5.4 million against those properties. …

[17]             As will be apparent, the picture painted by Ms Kansal in her first affidavit is at best incomplete. Moreover, her evidence about the financial situation continues to be broad.

[18]             Second,  while  I  accept  the  appeal  is  not  hopeless,  it  also   appears Aashi Ventures is seeking to squeeze a general appeal into questions of law. There is nothing objectionable about this, but it is somewhat artificial, particularly as it is far from clear that even if the questions of law are resolved in the company’s favour, that would necessarily change the outcome. In other words, the proposed questions of law appear somewhat tangential to whether the company should have a licence. Expressed another way still, to the extent the merits of the appeal can be discerned, the arguments on behalf of Aashi Ventures do not appear particularly strong on the critical issue, licence renewal.

[19]             Third, there are now concurrent determinations from two specialist bodies the company should not have a licence.

[20]             Fourth, Aashi Ventures has known since 31 October last year its licence would not be renewed. The company has already enjoyed the benefit of one stay.

[21]             Fifth, there is evidence that as recently as 13 November 2023, the company sold a single cheap cider for $3.99. As will be recalled, concern about single sales animated both the Committee and Authority. So too the vulnerability of the associated community.

[22]Sixth, there is no presumption a licence will be renewed.

[23]             In summary, while the serious consequences identified by Mr Branch on behalf of the company may come to pass, I am not persuaded that justice, in the round, warrants a stay pending appeal.

Result

[24]The application is dismissed.

[25]             If costs cannot be agreed, I will receive memoranda (of not more than 5 pages each) in this sequence:

(a)By 29 February 2024 on behalf of the company.

(b)By 7 March 2024 on behalf of the respondents

……………………………..

Downs J