By James Atkinson
An independent bottle shop owner who marshalled the community against a proposed Woolworths liquor store, before selling his outlet to the Coles-owned Liquorland business, should not have to pay Woolworths' wasted legal costs, a liquor regulator has ruled.
In a decision last week, Liquor Commission of WA chairman, Jim Freeman, upheld an earlier finding in favour of Perth company Tintoc Pty Ltd, the former licensee of the Warnbro Fair liquor store in the city's south.
In October 2009, Tintoc formally objected to an application by Woolworths to open a Woolworths Liquor store in the same shopping centre, lodging a petition containing 1,443 signatures against the supermarket being granted a liquor licence.
Tintoc's principal ground of objection was that it was not in the public interest to allow Woolworths and Liquorland to have an alleged "duopoly" in the area.
But the company withdrew this objection in December 2010 after it subsequently sold the Warnbro Fair store to Liquorland.
Woolworths, which has been fighting licensing battles on several fronts in WA, then applied to the Liquor Commission seeking an order that Tintoc pay its wasted legal costs of $6,000.
Woolworths argued that Tintoc caused the hearing of the licence application to be delayed by one year because the supermarket was required to carry out a market survey, compile a public interest assessment and prepare the case.
It claimed this delay assisted and enhanced Tintoc's commercial position in selling its licence to Liquorland.
"The objection is a vexatious and frivolous objection given Tintoc could never have been serious about the duopoly issue, for if it had been, it would not have sold its business to Liquorland," Woolworths argued.
But Liquor Commission Member Helen Coogan refused Woolworths' application for legal costs, finding [Tintoc] was entitled to pursue its objection regardless of its intention of selling the store.
"[Tintoc] should not be penalised for doing so by an award of costs made against it, not withstanding that it may have been 'less than frank'," she said.
In September last year, Woolworths appealed the ruling, but it was upheld by Commission Chairman Jim Freeman last week.
"The Commission finds that [Tintoc] objected primarily because its commercial interests were threatened by the establishment of another liquor store in the shopping centre that would impact on its trade and it wanted the application to be refused," he acknowledged.
But Freeman said the objections Tintoc raised were not vexatious, because they were "prima facie arguable and had merit".
"There is no evidence that the respondent objected with the intention of 'annoying or embarrassing' [Woolworths]," he said.