Requirements when applying for a business continuity order as per the Liquor Control Act 1988 (the Act).
Liquor licences are issued to a specific entity (individual person, company, or partnership) known as the licensee which authorises that entity to sell liquor at a specified place known as the licensed premises. Only the licensee may conduct business under the liquor licence. The liquor licence is not considered an asset in the normal sense, but it is a personal right vested in the licensee.
A business continuity order authorises a person to sell and supply liquor at specific licensed premises as if that person were the licensee. It is used in situations where the licensee no longer has a right to conduct business under the licence in their own right and the applicant for the business continuity order intends to carry on trading under the business in the interim until the licence is transferred.
A business continuity order will not be granted if the applicant does not wish to trade under the licence in the interim. A business continuity order is only necessary where the applicant intends on carrying on business under the licence to prevent substantive interruption in trading due to the licensee ceasing to occupy or carry on business.
A business continuity order is not a means to circumvent the transfer of the liquor licence process and is granted for a short period only to allow the continuation of trade under the licence whilst a transfer application is being considered by the licensing authority. Should a transfer application not be approved prior to the expiry of the business continuity order, a further protection order may be considered if warranted.
Authorisation to carry on a business without a business continuity order
The Act provides flexibility to allow persons other than the licensee to carry on business under the licence on a temporary basis in certain situations without the need to apply for a business continuity order. This is called an interim authorisation.
A relevant entity may take over the business and trade under the licence without the Director’s approval, however, must, within 7 days of exercising that right, give written notice to the Director of that fact. This written notice must set out when the right was exercised and upon what basis (see table below). In some of these cases approval must be sought to exercise the interim authorisation.
Where the freehold owner/lessor of a licensed premises terminates the lease of the licensee, the licensing authority should be advised in writing stating the circumstances of the termination and the eviction date.
Who may be granted a business continuity order
An application for the grant of a business continuity order can be made under certain circumstances.
Circumstances where an application for a business continuity order may be lodged
The entities marked with an * asterisk require prior approval from the licensing authority before trading can commence.
| Circumstance | Applicable entity |
|---|---|
| Licensee vacates licensed premises or ceases to carry on business. |
|
| Licence operation is suspended. |
|
| Person with interim authorisation who wants to carry on business longer than 3 months. |
|
| Any event or circumstance which may lead to the grant of interim authorisation where a transfer of licence is proposed to be lodged. |
|
| A hotel or liquor store serving the community in a rural area has ceased to carry on business. |
|
| Circumstance | Applicable entity |
|---|---|
| Death of an individual licensee. |
|
| Individual licensee becomes permanently disabled through accident, physical or mental illness, or infirmity. |
|
| Licensee is insolvent under administration, within the meaning of Corporations Law. |
|
| Company licensee becomes an externally-administered body corporate, within the meaning of Corporations Act. |
|
Application fees
An application is not considered lodged until the fee has been received. An invoice for payment will be issued on receipt of your emailed or posted form and can either be paid through the licensee's online portal account, by posting a cheque made payable to the Department of Local Government, Industry Regulation and Safety or a BPOINT payment link can be emailed on request. Application fees are not subject to GST.
Applications will not be progressed until the fee is received. Generally the application fee is not refundable, even if the application is refused or withdrawn.
| Fee description | Fee (no GST applicable) |
|---|---|
| Under section 87(1) | $276.00 |
In addition to the application fee, new applicants in respect of Business continuity order and permanent liquor licences (i.e. grant or transfer applications, with the exception of a club or club restricted licence) will pay an additional $175 fee for each individual in a position of authority (including each director and shareholder of the applicant company). If a trustee is being appointed for a club or club restricted licence the $175 fee applies for the trustee.
Lodgement
- Form 13 Notice of application for protection order.
- Prescribed application fee. Cheques are to be made payable to the Department of Local Government, Sport and Cultural Industries.
- Certificate of title including sketch of the land if specified.
- Written submission explaining the circumstances surrounding the application.
- Completed Personal Particulars form (LLD/5 or LLD/5A) for each person involved:
- in the case of a limited company for each director of the applicant company; or
- in the case of a proprietary limited company for all directors and shareholders of the applicant company. In cases where a shareholder of the applicant company is a company, only the directors need to do forms on behalf of the shareholding company.
Please note that further details may be requested if required.
Other documents that may be required
- Trust schedule. A copy is required where the applicant or nominee is a trustee for a trust. The Schedule must detail each primary or specified beneficiary and/or unit holder.
- Where any of the people involved hold office or are employed in the Public Service of the State or Commonwealth or in any agency or instrumentality of the Crown, a letter from the department which employs that person stating that they have no objection to the person being involved with the licensed premises.
- Where any of the people involved has been previously bankrupt and the bankruptcy has been discharged, a letter evidencing the discharge of the bankruptcy must be lodged.
Submitting your application
Ensure all required documentation is attached to your application.
In person
Department of Local Government, Industry Regulation and Safety
Level 2, Gordon Stephenson House, 140 William Street Perth WA 6000
By post
Department of Local Government, Industry Regulation and Safety
PO Box 8349
Perth Business Centre
WA 6849
Disclaimer
This information is designed to provide authoritative information regarding the subject matter covered, and with the understanding that the Director is not passing legal opinion or interpretation or other professional advice. The information is provided on the understanding that all persons undertake responsibility for assessing the relevance and accuracy of its contents.
