Linwood v Davison
[2014] NZHC 2062
•28 August 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2014-409-000562 [2014] NZHC 2062
BETWEEN LINWOOD FOOD BAR LIMITED
Appellant
AND
JENNIFER DAVISON First Respondent
STUART JOY Second Respondent
PETER SHAW Third Respondent
Hearing: 27 August 2014 Appearances:
R W Maze for Appellant
C J Lange and H F McKenzie for RespondentsJudgment:
28 August 2014
JUDGMENT OF GENDALL J
[1] This proceeding involves an appeal against a decision of the Alcohol Regulatory and Licensing Authority (the Authority) delivered on 1 August 2014 refusing to renew the appellant’s on-licence or to vary its hours of operation.
[2] Pending the hearing of the substantive appeal the appellant effectively seeks a stay of that decision. In an application filed 14 August 2014 the appellant sought an interim order from this Court pursuant to s 147A Sale of Liquor Act 1989 (the 1989
Act) that the decision of the Authority shall cease to continue in force and shall have
no effect pending the final determination of the substantive appeal.
LINWOOD FOOD BAR LIMITED v DAVISON [2014] NZHC 2062 [28 August 2014]
[3] The 1 August 2014 decision of the Authority specified (at paragraph [35]) that it was to take effect as at 12 midnight on Saturday 30 August 2014 and hence the hearing of the stay application took place with some urgency.
[4] This decision relates to that application for a stay.
Background
[5] On 17 December 2013 the appellant lodged an application for the renewal of its on-licence issued in respect of premises at 35F Riccarton Road, Christchurch, known as “Richey Bar”. By way of historical background, on 29 October 2013 five earlier applications relating to the Richey Bar premises and its general manager had been determined by the Authority. Two of those applications brought by the police and the Inspector sought the suspension of the on-licence and a variation of its conditions because of various breaches of the 1989 Act which were said to have been committed. The appellant had also sought to extend closing hours for the premises from 2 a.m. to 3 a.m.
[6] As a result, at that time in October 2013, by consent the on-licence was suspended for two days, and the appellant’s application to extend closing hours was placed on hold.
[7] Since that 29 October 2013 hearing, the 1 August 2014 decision of the Authority confirms that the appellant to an extent has reformed the way in which the Richey Bar premises operate in two ways: first by the appointment of a new general manager and, secondly, by the upgrading of security arrangements.
[8] Notwithstanding this, the appellant’s present 17 December 2013 application to renew the on-licence was opposed by the police, the Inspector, the Medical Officer of Health and certain neighbours. Questions over intoxication issues, the suitability and lack of experience of the appellant and a risk and negative impact in the general area imposed by the business operation of the Richey Bar were raised.
[9] Following a hearing on 14 July 2014 the Authority concluded in its 1 August
2014 decision that the appellant had not established suitability to hold an on-licence and in these circumstances refused to renew the on-licence for the Richey Bar.
Section 147A Sale of Liquor Act 1989
[10] Under s 147A of the 1989 Act the 1 August 2014 decision of the Authority continues in force unless this Court orders otherwise. Section 147A(2) however enables an appellant to bring an application for an order staying that decision and that is what has occurred here. And, in addressing s 147A, Chisholm J noted in DJM
Enterprises Timaru Limited v McCrostie:1
When deciding whether or not to grant a stay it is necessary for the Court to balance competing considerations, including those set out in Dymocks Franchisee Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd 13 PRNZ 48.
[11] Section 147A was considered also in Cats Nite Club (1991) Ltd v Police2 and in Three Bros Ltd v Rotorua District Licensing Agency.3 In the Three Bros Ltd decision Salmon J at page 5 referred to the Cats Nite Club decision and stated:
In Cats Nite Club (1991) Ltd v Police [1996] 3 NZLR 581 Hansen J noted that s.147A(2) had been enacted to prevent the abuse of the previous automatic suspension regime by the filing of tactical appeals. He noted that the discretion given by the subsection was not limited in any way and was, therefore, of a wide-ranging nature. He expressed the view that the Court was unlikely to grant a suspension unless it was satisfied that the appeal was bona fide, that there was some substantive merits in it, and that the consequences of the appeal were such that it would be completely unjust not to allow the suspension.
[12] The following specific grounds are advanced in support of the appellant’s
present s 147A application:
(a) This is a bona fide appeal against what is submitted is a decision based on findings of fact that are unsupportable by the evidence.
(b) The appeal has merit. But for the unsupportable findings of fact the Authority would not have concluded that the applicant was not a suitable applicant.
1 DJM Enterprises Timaru Ltd v McCrostie (HC) Timaru CIV-2007-476-581, 5 December 2007 at
[7].
2 Cats Nite Club (1991) Ltd v Police [1996] 3 NZLR 581.
3 Three Bros Ltd v Rotorua District Licensing Agency (HC) Rotorua, 18 August 1999 M76/99.
(c) The appeal has been filed promptly and within time.
(d) The decisions of the Authority will have the effect of preventing the appellant from trading as at 31 August 2014.
(e) It is highly unlikely that the appeal can be disposed of prior to
31 August 2014.
(f) If the appellant is prevented from trading from 31 August 2014 its financial position will be so prejudiced that it is unlikely to be able to resume trading if successful on appeal.
(g) That 16 people would lose their employment even if the appeal is successful unless the order is granted.
[13] In support of the application, the appellant has filed one affidavit, that of Mr Yang Zhang its director. This affidavit in reality only addresses, and in rather brief fashion, the financial position of the appellant. On this aspect, it is claimed that the business would be prejudiced if a stay is not granted and Richey Bar was required to cease trading prior to disposal of the substantive appeal.
[14] The respondents have filed an opposition to the appellant’s s 147A application. This relevantly lists the grounds on which that application is opposed as follows:
(a) The presumption in s 147A(1) of the 1989 Act that the decision of the Authority shall continue in force and shall have effect pending the final determination of the appeal should stand;
(b) It is not appropriate that the High Court exercise its discretion under s 147A(2) to order that the decision shall cease to continue in force and shall have no effect pending the final determination of the appeal;
(c) Yang Zhang remains an unsuitable licensee;
(d) There remain concerns in relation to matters including but not limited to:
(i) Public safety;
(ii) The safety of patrons at the Richey Bar;
(iii) The safety of potential patrons of the Richey Bar;
(iv) Management of the Richey Bar which is a high risk premises; and
(v) The amenity and good order of the locality.
(e) The affidavit of Yang Zhang does not provide sufficient evidence on which the High Court can be satisfied that it or Linwood Food Bar Limited would suffer financial hardship of the magnitude required to displace the s 147A(1) presumption.
Discussion
[15] At the outset it is necessary to note that after due enquiry within the Court, it has been established that the substantive hearing of the appellant’s appeal here can be accommodated promptly. This appeal is able to be set down for hearing (one day allowed) in the High Court at Christchurch on 8 September 2014. This clearly has some impact upon the stay application which is before me.
[16] On that aspect, I note also two matters that in my view have some relevance. The first is that, following the 29 October 2013 determination by the Authority of those earlier applications relating to Richey Bar I have referred to at [5] above, the on-licence was suspended for two days. The second was noted at para [16] of the
1 August 2014 decision of the Authority. It confirmed that the business of Richey Bar had also ceased trading “for a period of time in March 2014”. Thus it is clear that in relatively recent times, the appellant’s business has ceased trading on two occasions and then recommenced later. On these economic issues, also, in his
14 August 2014 affidavit in support of the present application, Mr Zhang gives no information of any kind as to the asset, liability, and revenue position of Richey’s Bar. In addition, he gives minimal details of its weekly expenditure which would be required to continue from 30 August 2014 even if the business had ceased to trade for a time.
[17] On these specific aspects, Mr Zhang simply deposes at para [15] of his affidavit in a rather bland fashion that:
[15] Accordingly, if Linwood Food Bar Limited’s appeal is successful and the High Court were to renew the on-licence it may be too late for Richey Bar if it has been prevented from trading in the meantime. Richey Bar will have lost its staff, and having had no income to meet its debts will either have had to borrow significantly or will simply cease to trade or go into liquidation.
No details of any kind as to the inability the business may have to borrow, if required, to cover a short period of lost revenue, are provided.
[18] The present case as I have noted above is to be heard within a short time, the appeal hearing taking place on 8 September 2014, a little over a week after 30
August 2014. On the rather limited information which is before the Court and the quite inadequate affidavit filed by Mr Zhang as to the financial viability of the business, I remain unconvinced that the appellant would face significant financial difficulty or liquidation if this stay is refused. The Richey Bar has ceased and recommenced its operation on two occasions in recent times and certainly there is nothing before the Court to suggest that a further interruption to the business for one or two weeks here would prove fatal.
[19] Next, turning to the criteria for exercise of the Court’s discretion under s 147A(2) noted at para [11] above it is not suggested here that the appellant’s appeal may be anything other than bona fide. As to the substantive merits of the appeal, however, it is difficult to determine these on the scanty material which is presently before the Court.
[20] But finally, as to whether or not the consequences of the appeal are such that it would be completely unjust not to allow the stay, standing back and viewing this matter in the round (as noted by Chisholm J in DJM Enterprises Timaru Ltd at para [9]) again I am not persuaded here that a stay is justified. From the decision of the Authority public safety concerns and issues over the continued suitability of the appellant are real and there is nothing before me to displace these concerns or to suggest that they do not remain live. Nor is there anything in Mr Zhang’s short affidavit before this Court to point to real financial hardship of such a nature or magnitude here to tip the balance.
Result
[21] For all the reasons outlined above, the present s 147A application for a stay is declined.
[22] The substantive appeal as I have signalled above is now set down for hearing
(one day is allowed) commencing at 10 a.m. on 8 September 2014.
[23] A direction is made that a transcript of the hearing before the Authority is to be made available and provided to the parties by 3 August 2014.
[24] Submissions for the substantive appeal on behalf of the appellant are to be filed and served by 5 p.m. on 5 September 2014.
[25] Submissions on behalf of the respondent are to be filed and served by 9 a.m. on 8 September 2014.
[26] No order as to costs on the present application is made.
...................................................
Gendall J
Solicitors:
Richard Maze, Christchurch
Raymond Donnelly & Co, Christchurch
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