The High Court has recently considered one of the exclusions from the power to grant off-licences to premises under s36 of the Sale of Liquor Act (Lopdell and Anor v Deli Holdings and Restaurant Brands Ltd).

Section 36 sets out the types of premises that may be granted an off-licence authorising them to sell alcohol for consumption off the premises. In particular, under s36(1) supermarkets with a floor area over 1000 m2, and grocery stores whose principal business is the sale of main order household foodstuff requirements, may be granted an off-licence, but s37(3) restricts the type of alcohol sold by such premises to beer and wine. Further, under s36(2)(b) an off-licence can be granted to premises where the sale of liquor would be an appropriate complement to the kind of goods sold in the premises. Under this type of off-licence there is not a compulsory restriction on the type of alcohol that may be sold, although such a restriction may be imposed as a condition.

In the Deli Holdings case, off-licences had been granted to Pizza Hutt, and to Rockfords (a food store selling a range of specialist foods). Both types of premises were granted an off-licence on the grounds that the sale of alcohol would be an appropriate complement to the goods sold, under s36(2)(b). Before an off-licence is granted under s36(2)(b), consideration must be given to the exclusion under s36(4) that states that an off-licence cannot be granted under s36(2)(b) in respect of any supermarket or grocery store, or any other premises on which the principal business is the sale of food or groceries.

In this case, the issue was the interpretation of s36(4), in particular whether it precludes the granting of an off-licence to premises on which the principal business is the sale of food or groceries, whether or not the business or premises are similar in nature to a supermarket or grocery store. The High Court held that, as a matter of statutory interpretation, the term 'any other premises' could not be read down to refer only to premises that were similar in nature to a supermarket or grocery store. The appeal was allowed and the off-licences were not issued.

Therefore, based on this decision, any premises on which the principal business is the sale of food or groceries cannot be granted an off-licence under s36(2)(b). This exclusion does not apply if the off-licence is granted under another part of s36.

This article is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely
on this article.

Copyright Phillips Fox, December 2001

For more details, contact the author: Celia Haden
Email:celia.haden@phillipsfox.com
Web site: Phillips Fox