Grassroots Trust v The Secretary for Internal Affairs HC Wellington CIV 2011-485-13

[2011] NZHC 1

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2011-485-000013

UNDER  The Judicature Amendment Act 1972

IN THE MATTER OF     An application under the Gambling Act

2003

BETWEEN  GRASSROOTS TRUST Applicant

ANDTHE SECRETARY FOR INTERNAL AFFAIRS

Respondent

Hearing:         18 January 2011

Counsel:         J W True for the Applicant

K Muller for the Respondent

Judgment:      19 January 2011

JUDGMENT OF WILD J

Introduction

[1]      The applicant,  Grassroots Trust,  applies  for interim  relief to  preserve  its position until this application for judicial review can be heard.   Grassroots‘ substantive application seeks review of the decision of the respondent, the Secretary for Internal Affairs, to refuse Grassroots‘ application under the Gambling Act 2003 for a Class 4 venue licence which would entitle it to operate 18 gaming machines at the Bus Stop Tavern.

[2]      The interim relief sought by Grassroots is an order directing the respondent to issue to Grassroots a Class 4 venue licence for the Tavern for one day only before 26

GRASSROOTS TRUST V THE SECRETARY FOR INTERNAL AFFAIRS HC WN CIV 2011-485-000013 19

January 2011

January.  The point of that interim relief is to preserve Grassroots‘ ability to acquire a Class 4 venue licence for the Tavern which would entitle it to operate 18 gaming machines, rather than the usual nine machines.  That ability will be lost to Grassroots if a licence is not granted within six months from 26 July 2010, when the Tavern ceased to be licensed.  I will elaborate on this.

[3]      Grassroots seeks also to protect the position of Windsock (2007) Limited which   has   appealed   against   the   respondent‘s   refusal   decision.      Grassroots‘ application  named  Windsock  as  the  venue  operator,  and  Windsock‘s  principal, Mr Michael  O‘Brien,  as  the  venue  manager.    Mr  O‘Brien  was  nominated  by Grassroots as the sole key person for the Tavern venue.  ―Key person‖ is defined in s 4 Gambling Act.   It effectively means that Mr O‘Brien would be responsible for operation of the Bus Stop Tavern as a gambling venue.

[4]      Although Ms Muller, for the respondent, submits the application fails on every base, I see the key issue as whether Grassroots has a genuinely arguable case. More  specifically,  can  Grassroots  seriously  argue  that  the  respondent  erred  in refusing its application on the basis that Mr O‘Brien was an unsuitable key person as venue operator?

[5]      The substantive relief sought in Grassroots‘ statement of claim is both a declaration that the respondent‘s refusal decision is invalid and an order quashing that decision.

[6]      I  need  not  decide  whether  Grassroots‘  application  for  interim  relief  is governed by r 30.4 or by s 8 Judicature Amendment Act 1972, or by both.  That is because I see the key issue as whether Grassroots has a seriously arguable case.  If it does not, it should not have interim relief because it has no position warranting protection in the interim.

[7]      I will, however, deal briefly with counsel‘s arguments on the balance of convenience, which is the second stage of the conventional approach to dealing with interim injunctions.

Background

[8]      The Bus Stop Tavern is in Riddiford Street in Newtown in Wellington.  Until

26 July 2010 a licence to operate 18 gaming machines at the Tavern was held by another company, unrelated to Grassroots or Windsock.

[9]      On 26 July 2010 that other company surrendered its Class 4 Venue Licence for  the Tavern  by  operation  of  s  71(1)(g)  Gambling Act  2003.    The  surrender occurred because the licensee had not conducted Class 4 gambling at the Tavern for a period of more than four weeks.  From 26 July no venue licence has been held for the Tavern, and I assume no gambling has been carried on there.

[10]     On  3  December  the  respondent  received  Grassroots‘  application,  dated

1 December, for a Class 4 Venue Licence for the Tavern.  As I have mentioned, the application nominated Windsock as the venue operator and Mr O‘Brien as the venue manager.  Mr O‘Brien was nominated by Grassroots as the sole key person for the venue.  The application proposed operating gambling at the tavern seven days, 92.5 hours, a week.

[11]     Grassroots‘  application   included   the   section,   required   by   s   65(2)(e), completed by Mr O‘Brien, giving his personal details and history.   That history included this question, which Mr O‘Brien answered ―No‖:

B.2    Have you been a member of an executive committee of a group or organisation which has been refused a Gambling or Liquor Licence, or had a Gambling Licence cancelled or not renewed?

It is common ground that the correct answer to this question was ―Yes‖  because, while Mr O‘Brien was its Executive Officer, the respondent refused to renew Metro Charitable Trust‘s Class 4 operator‘s and venue licences.   Metro subsequently surrendered these after withdrawing an appeal against the renewal refusal.

[12]     Grassroots is a charitable trust with its registered office in Hamilton.  It holds a Class 4 operator‘s licence.  Grassroots deals with operational issues for venues for which  it  is  licensed  through  its  management  company,  Maxserv  Limited.    The

Chairman of Grassroots is Mr Martin Bradley, a Hamilton solicitor.  In an affidavit

he swore on 23 December in support of Grassroots‘ application, Mr Bradley deposes:

10.  I confirm that Grassroots Trust has a policy of not making grants to any Racing Club.  In particular I confirm that while Grassroots Trust holds a licence for the Bus Stop Tavern Venue it will not make any grants for any purpose associated with racing, including harness racing.

[13]     Since  6  December  2010  Mr  O‘Brien  has  been  the  sole  shareholder  and

director of Windsock, a company he acquired from its previous proprietor.

[14]     On 23 December the respondent notified Grassroots of its decision to decline the application pursuant to s 67(1)(d)(r) and(s) Gambling Act which provide

Grant of class 4 venue licence

67       Grounds for granting class 4 venue licence

(1)      The Secretary must refuse to grant a class 4 venue licence unless the

Secretary is satisfied that –

...

(d)       any investigations carried out by the Secretary do not cause the Secretary not to be satisfied about the suitability of any other key person, in terms of section 68; and

...

(r)       there  are  no  other factors that  are likely to  detract from achieving the purpose of this Act; and

(s)       any  other  requirement  set  out  in  regulations  or  licence conditions is, or will be, met.

[15]     Windsock appealed to the Gambling Commission against that decision on

24 December.  I have already mentioned that Grassroots applied for judicial review of the refusal decision by statement of claim dated 23 December.

The refusal decision substantively challenged

[16]     The  respondent‘s  refusal  decision  is  in  a  letter  dated  23  December,

communicated to Grassroots the same day. The pertinent parts of this letter are:

Background

5.The  venue  operator  named  in  the  application  is  Windsock  (2007) Limited, sole director/shareholder Michael Joseph O‘Brien (Mr O‘Brien).    The  venue  manager  named  in  the  application  is  Mr O‘Brien.

6.Mr O‘Brien is known to the Department, having previously been Executive Officer of, and later Contractor to, the former Metro Charitable Trust  (Metro),  which  held  a  licence  to  operate  gaming machines under the Gaming and Lotteries Act 1977 and later held a class 4 operator‘s and venue licences under the Act.  Persons holding such positions are key persons.

7.      Metro surrendered its class 4 operator‘s and venue licences in April

2006 prior to the Secretary proceeding to cancellation, because of Metro‘s history of non-compliance, namely numerous breaches of section 118(3) of the Act when Mr O‘Brien was a key person in relation to Metro‘s class 4 operator‘s licence.

Mr O’Brien’s Past History of Non-Compliance

8.      On 15 June 2005, the Secretary proposed to refuse to renew the Class

4 operator‘s and venue licences held by Metro.  The grounds for this proposal were matters arising from the audit report dated May 2005 as

well as the findings from an investigation into Metro, Mr O‘Brien and

harness racing.

9.Serious breaches were identified during the 2002 audit and Metro was asked to remedy them.  A later audit of the period 1 October 2002 to

31 March 2004 identified that many of those breaches were still continuing, indicating the unsuitability, in terms of section 52(4) of the

Act, of Metro‘s key persons and in particular its Executive Officer, Mr

O‘Brien.

10.The investigation examined the linkages between the Trust, its venues and the recipient of grants funds distributed by Metro.   The investigation discovered that the New Zealand Metropolitan Trotting Club  (NZMTC),  which was  the  principal recipient of  grants from Metro and a key person in relation to the Trust, was in effect the beneficial owner of 5 venues where Metro operated gaming machines. The nature of these transactions, and the significant involvement of Mr O‘Brien (Metro‘s Executive Officer) in the transactions, led the Secretary to the conclusion that the NZMTC‘s purpose in engaging in those arrangements was to secure the flow of gaming machine net proceeds from the venues, through Metro and back to NZMTC. These findings indicated that Metro failed to comply with the ‗key persons‘ prohibition, in which case the Secretary was required not to renew its class 4 operator‘s licence under section 52(1)(j) [in conjunction with section 56(5)] of the Act.

11.     The investigation also raised serious concerns with the Department as to Metro‘s ability to comply with other statutory requirements that pertain to the required separation between venues, recipients and the gambling operator as articulated in sections 113 and 118 of the Act.

The very active involvement of Mr O‘Brien in the purchase arrangements, which culminated in his personally guaranteeing some of them, effectively amalgamated the roles and interests of Metro, NZMTC and the venues, and thwarted the regulatory intention by rendering the required separation indistinguishable.

12.The failure to comply with these applicable regulatory requirements, and the attempt to circumvent the requirements of the Act by using nominee companies as the legal owners of the venues, also required the Secretary not to renew the Trust‘s class 4 operator‘s licence, pursuant to sections 52(1)(i) [in conjunction with section 56(5)] of the Act.

13.The Department subsequently considered submissions on the proposal then  made  a  decision  to refuse  to  renew  Metro‘s  licence.    Metro appealed the decision.

14.In February 2006, while the appeal was under consideration, the Department refused to accept an application to add Mr O‘Brien to the class 4 venue licence Metro held in respect of Origins Bar & Cafe.

15.On   13   March   2006,   the   Gambling   Commission   emailed   the Department a copy of a notice of appeal by Mr O‘Brien against this refusal to accept the application.

16.     On 5 April 2006, Mr O‘Brien advised that Origins Bar & Cafe had

closed.

17.     On 6 April 2006, Mr O‘Brien withdrew his appeal.

18.In August 2006, Metro surrendered its class 4 operator‘s and venue licences and, on 7 August 2006, a joint memorandum by Metro and the Secretary was filed with the Gambling Commission and the appeal was discontinued.

Current Concerns

19.Mr O‘Brien‘s past history of non-compliance involving arrangements between a society, i.e. Metro, venue operator and grant recipients has direct relevance to the current application.  Mr O‘Brien is still actively involved in harness racing and, as a venue operator/venue manager there is once again risk of him resuming his non-compliant behaviour.

...

Conclusion

25.Considering   Mr   O‘Brien‘s   past   history   of   non-compliance   as Executive Officer of, and later Contractor to, Metro, the Secretary cannot be satisfied that the requirements of section 68 are met when assessing  Mr  O‘Brien‘s  suitability  as  a  key  person  in  relation  to sections 67(1)(d), (r), and (s) of the Act.

26.Therefore, pursuant to section 67(1) of the Act, the Secretary refuses to grant the Licence in respect of the Venue.

[17]     The May 2005 audit report referred to in paragraph 8 of the letter is in evidence.  Counsel referred to it in their submissions and I have since read it.  The report followed an investigation of Metro‘s operation during the period 1 October

2002 to 31 March 2004 of the Class 4 operator‘s licence held by it, and of venue licences held by it for various venues.  Metro was a charitable society.  Throughout the audit period Mr O‘Brien was its Executive Officer.

[18]     With one possible exception, Ms Muller accepted that none of the many concerns detailed in the report arose specifically from Mr O‘Brien‘s discharge of Metro‘s  responsibilities  as  a  venue  operator.    She  accepted  that  the  concerns primarily stemmed from Metro‘s discharge – or more strictly failure to discharge – its duties as licence operator.  These are effectively failures by Mr O‘Brien as he was Metro‘s Executive Officer.  It suffices to give two examples.  The first is payment of more than actual and reasonable expenses by Metro to Mr O‘Brien as its Executive Officer, and substantial discrepancies between what should have been paid by Metro to Mr O‘Brien and what was paid to him.   The second example is improper involvement by Mr O‘Brien as Metro‘s Executive Officer in the making of grants by Metro to organisations of which Mr O‘Brien was an officer or in which he had some involvement.   For instance, Mr O‘Brien was the Secretary or Racing Secretary of two trotting clubs which received grants totalling $110,648 from Metro during the audit period.

[19]     The possible exception was the banking of two personal cheques as part of the gaming machine proceeds.   These cheques were dishonoured, resulting in a deficit of $110.00 which was quickly remedied.  Both cheques were honoured when re-presented a few days later and the report categorised the situation as ―a technical underbanking during the interim period‖.    Mr True submitted that the key venue person responsible for this minor infraction was not Mr O‘Brien, but a Mr Kitt Malcolm.

Serious question for trial?

[20]     Section 68 Gambling Act provides:

68   Determining suitability for class 4 venue licence

(1) In determining whether a key person is a suitable person for the purpose of sections 66 and 67, the Secretary may investigate and take into account the following things:

(a) whether he or she has, within the last 10 years,—

(i) been convicted of a relevant offence:

(ii) held, or been a key person in relation to, a class 3 or class 4 operator's licence, a class 4 venue licence, a casino licence, or a licensed promoter's licence under this Act or any licence under previous gaming Acts that has been cancelled,  suspended,  or  for  which  an  application  for renewal has been refused:

(iii) been placed in receivership, gone into liquidation, or been adjudged bankrupt:

(b) the financial position and the credit history of the key person: (c) the profile of past compliance by the key person with—

(i)  this  Act,  minimum  standards,  game  rules,  Gazette notices, and licence conditions; and

(ii) the Racing Act 2003 or the Racing Act 1971 (and any rules of racing made under either of those Acts); and

(iii) previous gaming Acts, and regulations made under previous gaming Acts; and

(iv) a licence or a site approval issued under a previous gaming Act.

(2) The Secretary may take into account matters of a similar nature to those listed in subsection (1) that occurred outside New Zealand.

[21]     Ms Muller argued that s 68(1)(a)(i) and (c) – I am assuming she intended to refer firstly to s 68(1)(a)(ii) – is not limited to suitability factors associated with the particular type of licence applied for.   Those provisions refer to a wide range of licences associated with gaming-related activity, past and present.

[22]     Mr True accepted that.  His submission was that the respondent had failed to weigh up the concerns detailed in the Metro report, and to distinguish between those that related to operation of a venue, as opposed to operation of a licence.  In short, the respondent had failed to ask himself:  which of the matters in the Metro report might properly give me concern as to Mr O‘Brien‘s ability to operate the Bus Stop Tavern as a gaming machine venue?

[23]     An affidavit was sworn on 17 January by Ms Rohloff, the Senior Gambling Inspector with the Department of Internal Affairs with responsibility for Class 4 licence applications.  In part, this affidavit responded to that sworn by Mr Bradley for Grassroots.  Mr Bradley had deposed:

12.  I have reviewed the audit report into Metro Charitable Trust which is annexed to Mr O‘Brien‘s affidavit.  I do not consider any of the matters raised in the audit report affect Mr O‘Brien‘s ability to undertake the duties  of  a  venue  operator  and  venue  manager.    Mr  O‘Brien  will certainly have no input into how Grassroots Trust as a society is run.  I do  not  have  any concerns  regarding the  venue  operator‘s  ability to supervise the gambling operation or to account to Grassroots Trust each week for the gaming machine proceeds generated from the venue.

[24]     Ms Rohloff responded:

40.Mr Bradley states that the Department has taken into consideration irrelevant considerations in respect of Mr O‘Brien.  He also states that he does not consider the issues raised in the audit report affect Mr O‘Brien‘s ability to undertake his duties as venue manager and venue operator.

41.However, the considerations are very relevant in that the issue is Mr O‘Brien‘s suitability in terms  of the Act.   While a key person in respect of Metro, he had an on-going history and pattern of non- compliance with the Act and disregard for the rules.   Whether that history is in connection with an operator‘s licence or a venue licence is immaterial.   The Act permits the Secretary to investigate and consider areas of non-compliance in accordance with s 68.  Therefore, any profile of non-compliance in relation to an operator‘s licence is very relevant to the suitability of the sole key person in respect of a venue licence.

[25]     Mr True accepted Ms Muller‘s point that s 52(4) and (5) of the Act contain virtually identical provisions applying to applications for operators‘ licences. Nevertheless, he contended that Ms Rohloff is incorrect in stating, in her paragraph

41, that it ―is  immaterial‖  whether the history recounted in the Metro report is in

connection with an operator‘s licence or a venue licence.  He pointed out that clause

28 of the Class 4 Venue Agreement between Windsock and Grassroots provided that the duties of the venue manager were as listed in Schedule A of the agreement.  None of the duties listed in Schedule A could give rise to the sort of problems detailed in the Metro audit report.

[26]     Mr True reinforced this point by pointing out that the respondent did not make any inquiry of Grassroots before deciding to decline the application.  Had it done so, Mr Bradley would undoubtedly have emphasised what he subsequently deposed  in  paragraph  12  of  his  affidavit.    Although  it  is  not  clearly  stated  in paragraph 12, Mr True informed me from the bar that Grassroots had considered the Metro audit report before making its application and nominating Mr O‘Brien as venue manager.  The position was not that Grassroots became aware of the Metro report only when its application was declined.

[27]     Ultimately, Mr True‘s argument is that the Metro concerns, though relevant to Grassroots‘ application in terms of s 68 of the Act, should have been given little or no weight.  However, within the confines of s 68, the weighting of relevant factors is for the respondent.   This point was made by Thomas J delivering the Court of Appeal‘s judgment in Alex Harvey Industries Ltd v CIR (2001) 15 PRNZ 361 in relation to a discretionary decision such as that sought to be reviewed here:

[14]     Weighing and balancing the various factors is an integral part of a Judge‘s exercise of his or her discretion.   This Court will not repeat that exercise unless the Judge has given such excessive weight to some factor or such patently inadequate weight to another as to be ―plainly wrong‖.  The problem is that, if the phrases ―undue weight‖ and ―insufficient weight‖ have this meaning, they are tautologous and unnecessary.  If, on the other hand, they do not have that meaning they suggest that the Court will be prepared to substitute its view for that of the Judge which it will not do.

[28]     Similarly, William Young J for the Court in Health Waikato Ltd v Elmsly

CA69/03, 25 March 2004:

[4]       ...   Normally issues of weighting are of no moment on an appeal against a discretionary assessment.  ...

[29]     In the face of the wording of s 68(1)(a)(ii) and (c), I consider Grassroots‘

substantive application has no real prospect of success.   When s 68 permits the

respondent to take into account the concerns about Mr O‘Brien detailed in the Metro report, an argument that he was wrong to do so, or wrong to give them the weight he did, cannot succeed.   I cannot contemplate the Court accepting a submission by Grassroots that the respondent was ―plainly wrong‖ to factor in the concerns detailed in the Metro report.  It was common ground that the role of a venue manager is a responsible one, the level of responsibility being underscored by the fact that it must be fulfilled by an individual, not a corporate entity.   It was common ground that Mr O‘Brien‘s responsibilities as venue manager of the Tavern would include hands- on   involvement   with   the   gaming   operations,   equipment   and   the   electronic monitoring   system,   reconciliations,   supervision   of   contractors   servicing   the machines, attending to all the reports and returns required by the respondent, preventing under-age people gambling, dealing with problem gamblers, and the training of staff at  the Tavern venue.    Grassroots‘ application  for interim  relief therefore fails at the threshold.

The balance of convenience

[30]     I deal with four specific arguments raised by Ms Muller under this heading. The first is that Grassroots‘ application for interim relief is unnecessary, because the Gambling Commission could back-date the licence if it allowed Windsock‘s appeal. It did this in Appeal by Air Rescue Services Ltd GC26/10, 5 October 2010.   The effect of back-dating in terms of s 92(1)(b), would be that there would be no period of six months or more during which no licence was held for the Bus Stop Tavern. Grassroots‘ ability to obtain a venue licence for 18 gaming machines would thus be preserved.

[31]     Mr True accepted that the Air Rescue decision mandates back-dating of the commencement of a licence.   But he pointed out that back-dating is by no means guaranteed  on  every  successful  appeal  to  the  Commission.    For  example,  in paragraph 37(c) of its decision the Commission stated of back-dating:

(c)     It  would  be  reasonable  for  backdating  powers  to  be  exercised  to protect the applicant against loss of statutory opportunity arising from unwarranted delay or error by the Secretary in appropriate cases.

[32]     There is no suggestion of delay by the respondent in processing Grassroots‘ application.   I accept Mr True‘s submissions on this first point.   I do not regard Grassroots‘ application for interim relief as unnecessary.

[33]     Secondly, Ms Muller submitted that Grassroots would not be prejudiced if denied interim relief, as success with its substantive application would still allow it to obtain a licence for nine gaming machines.   Indeed, Ms Muller submitted that Grassroots could obtain a venue licence for the Tavern even if its substantive application failed, provided in its fresh application it nominates an acceptable venue manager.  All that would be lost if interim relief is denied is Grassroots‘ ability to take advantage of the ―grandfathered‖ entitlement in s 92 to operate 18 gaming machines at the Tavern.  An ingredient of this submission seemed to be Ms Muller‘s exposition of the purpose of the Gaming Act, as set out in s 3.  The gist of this is to control the growth of gambling, thus minimising its harmful effects.  The limit of nine gaming machines per venue unless advantage can be taken of s 92 is one of the provisions designed to achieve the Act‘s purpose.

[34]     I do not accept that Grassroots would not be prejudiced if denied interim relief.  The purpose and policy of the Act cannot be equated with a lack of prejudice to Grassroots.  If there would be no downside for Grassroots it is difficult to see why it would seek interim relief.  As Mr Bradley explained in his affidavit there will be a significant financial advantage to Grassroots if it is able to have 18 rather than nine machines at the Bus Stop Tavern venue.  Mr Bradley deposed:

Typically an 18 machine site will generate approximately 30%-60% more revenue than a nine machine site.  The reduction in revenue will reduce the amount of funds Grassroots Trust is able to return to the community.

[35]     Thirdly, Ms Muller submitted that granting interim relief would run contrary to the scheme of the Gambling Act and would improve rather than preserve Grassroots‘ position.  She submitted that there is no provision in the Act allowing the period of up to six months referred to in ss 90(2) and 92(1)(b) to be ―stopped‖ once it has started to run.   Directing the respondent to grant Grassroots a Class 4 venue licence for the Bus Stop Tavern for one day would, contended Ms Muller, controvert the Act.  Ms Muller argued that the interim relief sought is not necessary to preserve Grassroots‘ position.  It is sought to improve its position by, in effect, stopping and

re-starting the six month period.   The Act does not provide for the period to be stopped for any reason.  It does not stop to enable an application for a venue licence filed during the period to be processed.  It does not stop where an application has been refused, to enable rights of appeal to be pursued.

[36]     I accept all of that.   But I do not accept that granting interim relief would controvert the scheme of the Gambling Act or materially improve Grassroots‘ position.  If (and I have found this not to be the case) the respondent, for irrelevant reasons, had refused an application made by Grassroots comfortably within the six month period, then it cannot be contrary to the Act effectively to ―stop‖  the six month period running to enable the decision making process to be properly completed.  In order to have the benefit of the ―grandfathered‖ status permitted by s 92, I accept that Grassroots needed to secure the grant of a venue licence within the six month period.  But if it fails to do so only because of faulty decision making by the respondent, then it must be proper for the Court to ensure that the benefit of the

―grandfathered‖ status inures for Grassroots.

[37]     Ronald Young J granted the very type of relief sought here in First Sovereign

Trust & Anor v The Secretary for Internal Affairs HC Wellington, CIV 2005-485-

512, 23 March 2003, although I accept he termed it ―unorthodox‖ (at [31]), and in his later judgment in Air Rescue Services Ltd v The Secretary for Internal Affairs HC Wellington, CIV 2010-485-1919, 8 October 2010 stated:

[62]  Secondly, ordinarily, it is inappropriate for a Court to direct an administrative authority given the power by Parliament to grant such a licence.  Also it is generally inappropriate for a Court to effectively bypass  legislative  provisions  by  the  kind  of  order  sought  by  the plaintiff here.   In making these comments I acknowledge however I have directed the issue of such a licence in other cases.

[38]     What I do accept is Ms Muller‘s submission that any one day licence I directed the respondent to grant to Grassroots should be subject to a condition.  Had I directed the respondent to grant such a licence I would have directed that it be subject to the condition that:

(a)      Grassroots and Windsock pursue their respective judicial review application and appeal expeditiously.   I would have reserved to the respondent leave to apply if this did not occur.

(b)      The licence was granted consequent upon the review or appeal.

The point of (b) is to counter the advantage that would otherwise result from the grant of a one day licence ie the six month period referred to in ss 90(2) and 92(1)(b) stopping and starting to run again.

[39]     To summarise, I saw no force in any of Ms Muller‘s arguments that the balance of convenience favoured refusing interim relief.  I consider the balance falls decidedly in Grassroots‘ favour.   Had Grassroots surmounted the threshold of a serious case for substantive hearing, I would have granted it the relief it sought, on the condition I have spelt out.

Costs

[40]     Counsel   agreed   that   costs   should   follow   the  event   on   a  2B  basis. Accordingly, Grassroots is to pay the respondent‘s costs of yesterday‘s application on a  2B  basis,  together  with  disbursements  to  be  fixed  by  the  Registrar  failing agreement.

Solicitors:

Harkness Henry, Hamilton for the Applicant

Crown Law Office, Wellington for the Respondent