Asia Television Ltd v Yau's Entertainment Pty Ltd

[2003] FCA 965

FEDERAL COURT OF AUSTRALIA

Asia Television Ltd v Yau’s Entertainment Pty Ltd

[2003] FCA 965

ASIA TELEVISION LIMITED and ATV ENTERPRISES LIMITED v YAU’S ENTERTAINMENT PTY LIMITED, AND YAU’S ENTERTAINMENT PTY LIMITED and ASIA TELEVISION LIMITED, ATV ENTERPRISES LIMITED
N 343 OF 1999

GYLES J
SYDNEY
12 SEPTEMBER 2003  

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 343 OF 1999

BETWEEN:

ASIA TELEVISION LIMITED
FIRST APPLICANT

ATV ENTERPRISES LIMITED
SECOND APPLICANT

AND:

YAU'S ENTERTAINMENT PTY LIMITED
ACN 003 584 183
RESPONDENT

AND

YAU’S ENTERTAINMENT PTY LIMITED (ACN 003 584 183)
CROSS CLAIMANT

ASIA TELEVISION LIMITED AND ATV ENTERPRISES LIMITED
CROSS RESPONDENTS

JUDGE:

GYLES J

DATE OF ORDER:

12 SEPTEMBER 2003 

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The applicants/cross-respondents, Asia Television Limited and ATV Enterprises Limited, pay four-fifths (4/5ths) of the costs of the respondent/cross-claimant, Yau’s Entertainment Pty Limited, incurred in relation to both the claim by the applicants and the cross-claim against the applicants/cross-respondents.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 343 OF 1999

BETWEEN:

ASIA TELEVISION LIMITED
FIRST APPLICANT

ATV ENTERPRISES LIMITED
SECOND APPLICANT

AND:

YAU'S ENTERTAINMENT PTY LIMITED
ACN 003 584 183
RESPONDENT

AND

YAU’S ENTERTAINMENT PTY LIMITED (ACN 003 584 183)
CROSS CLAIMANT

ASIA TELEVISION LIMITED AND ATV ENTERPRISES LIMITED
CROSS RESPONDENTS

JUDGE:	GYLES J
DATE:	12 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 15 July 2003 I delivered reasons for judgment which dealt with the outstanding substantive issues in the litigation (Asia Television Ltd v Yau’s Entertainment Pty Ltd [2003] FCA 720), following which on 12 August 2003 I made formal orders which did not dispose of all questions of costs. In those reasons for judgment I set out the series of judgments which record the history of the litigation, which I do not repeat but which can be taken to be incorporated by reference. I have taken into account, but will not reproduce, the written submissions of each party as to costs.

2. A review of the history indicates that Yau’s Entertainment Pty Ltd (“Yau’s”) succeeded on the main issue of wrongful termination of licence, and succeeded in establishing substantial damages for that.  Success in that respect was both offensive and defensive.  I am satisfied that those were the principal issues in the case.  They also carried with them success in resisting the intellectual property and other claims by the applicants which depended upon the claim of successful termination of licence.

3. The applicants succeeded in establishing infringement of intellectual property and other breaches in relation to the period from 1992 to the time of  purported termination.  This involved, amongst other things, a substantial factual dispute about authorisation.  In the events which happened, the damages established were relatively minor.  The applicants also succeeded in defending the claim for revocation of trademark. 

4. Although the judgments were given at different stages, the evidence taken at the first, and most substantial, hearing was relevant to most, if not all, issues. 

5. In my opinion, rather than attempting to dissect costs for issues, the appropriate order is that the applicants should pay four-fifths (4/5ths) of the costs of Yau’s incurred in relation to both the claim and the cross-claim. 

6. Yau’s also seek a Bullock order in respect of the costs which it had been ordered to pay to the second cross-respondent, Chinatown Entertainment (Australia) Pty Limited (“Chinatown”).  In my opinion, Yau’s are not entitled to this order.  It commenced a cross-claim against Chinatown which was dismissed by consent.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            12 September 2003

Counsel for the Applicants:	JS Drummond
Solicitor for the Applicants:	Allens Arthur Robinson
Counsel for the Respondent:	SD Epstein SC
Solicitor for the Respondent:	Frank Low Yeung & Co
Date of Hearing:	12 August 2003
Date of Judgment:	12 September 2003