Bacchus Distillery Pty Ltd v BDS Marketing (Aust) Pty Ltd
[2012] FCA 1520
FEDERAL COURT OF AUSTRALIA
Bacchus Distillery Pty Ltd v BDS Marketing (Aust) Pty Ltd [2012] FCA 1520
Citation: Bacchus Distillery Pty Ltd v BDS Marketing (Aust) Pty Ltd [2012] FCA 1520 Parties: BACCHUS DISTILLERY PTY LTD v BDS MARKETING (AUST) PTY LTD (In Liquidation) (ACN 006 597 011) and CB GLOBAL MANAGEMENT PTY LTD (ACN 134 548 566) File number: VID 673 of 2011 Judge: NORTH J Date of judgment: 17 December 2012 Date of hearing: 17 December 2012 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 6 Solicitor for the Applicant: Mr D McAloon of Clayton Utz Counsel for the Respondents: The Respondents did not appear
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 673 of 2011
BETWEEN: BACCHUS DISTILLERY PTY LTD
ApplicantAND: BDS MARKETING (AUST) PTY LTD (In Liquidation) (ACN 006 597 011)
First RespondentCB GLOBAL MANAGEMENT PTY LTD (ACN 134 548 566)
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
17 DECEMBER 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Pursuant to section 500(2) of the Corporations Act 2001 (Cth), the Applicant is granted leave to proceed with this proceeding against the First Respondent.
2.This proceeding be discontinued.
3.The Applicant and BDS International Limited be discharged from the undertaking set out in the interlocutory order made in this proceeding on 5 July 2011.
4.Each of the Respondents be restrained, whether by itself or by its servants or agents or otherwise, from causing to be manufactured, importing, distributing, promoting for sale or supply, offering, displaying, advertising, selling and/or supplying any alcoholic beverages in or under and by reference to the packaging which appears on any of the following:
(a) Exhibit A1 being the Respondents’ COWBOY 2 litre cask, as partially depicted in the photograph which is Annexure A1 to this Order;
(b) Exhibit A2 being the Respondents’ COWBOY 700 ml bottle, as partially depicted in the photograph which is Annexure A2 to this Order;
(c) Exhibit A3 being the Respondents’ COWBOY 6 x 30 ml pack with contents, as partially depicted in the photograph which is Annexure A3 to this Order; and
(d) Exhibit A4 being the Respondents’ QF 6 x 30 ml pack without contents, as partially depicted in the photograph which is Annexure A4 to this Order,
or any packaging which is a colourable imitation of that which appears on:
(e) the COWBOY Liqueur Product (2 litres) being Exhibit VH-36 to the Affidavit of Vincent Heng affirmed 23 June 2011 (the Heng Affidavit), as partially depicted in the photograph in Exhibit VH-35 which is Annexure A5 to this Order;
(f) the COWBOY Liqueur Product (700 ml) being Exhibit VH-34 to the Heng Affidavit, as partially depicted in the photograph in Exhibit VH-33 which is Annexure A6 to this Order;
(g) the COWBOY Shot Products wrap or COWBOY shot being Exhibits VH-20, VH-21 and VH-22 and Exhibits VH-16, VH-17 and VH-18 respectively to the Heng Affidavit, as partially depicted in the three photographs in Exhibit VH-19 and the four photographs in Exhibit VH-15 which are Annexure A7 and Annexure A8 respectively to this Order; and
(h) the QF Shot Products wrap or QF shot being Exhibit VH-56 and Exhibit VH-54 respectively to the Heng Affidavit, as partially depicted in the photograph in Exhibit VH-55 and the photograph in Exhibit VH-53 which are Annexure A9 and Annexure A10 respectively to this Order.
5.The Respondents deliver up to the Applicant’s solicitors for destruction under the supervision of the Applicant (or its agent) all of the goods, packaging, catalogues, price lists, brochures, advertising material, video cassettes and other documents or things in the possession, custody, power or control of the Respondents, the sale or use of which would fall within the scope of Order 4.
6.The Respondents pay forthwith 60% of the Applicant’s costs of and incidental to the application dated 24 June 2011 for interlocutory relief in this proceeding, as agreed between the parties or taxed by the Court in default of agreement.
7.There is no further order as to costs.
Note:Entry of order is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 673 of 2011
BETWEEN: BACCHUS DISTILLERY PTY LTD
ApplicantAND: BDS MARKETING (AUST) PTY LTD (In Liquidation) (ACN 006 597 011)
First RespondentCB GLOBAL MANAGEMENT PTY LTD (ACN 134 548 566)
Second Respondent
JUDGE:
NORTH J
DATE:
17 DECEMBER 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant has applied for final orders which reflect a settlement which was made between the parties on or about 24 February 2012. The substance of the orders relate to the delivery up of existing alleged infringing packaging of various liquor products. Some of the alleged infringing material has been delivered up in accordance with the agreement, but some has not. The reason that some items have not been delivered up is that they are retained by third parties in a warehouse under a lien.
The purpose of the orders sought, including on application for leave to proceed against the first respondent, is that, if the lien is lifted, there is a danger that those products would be sold or distributed contrary to the agreement between the parties. The proposed orders oblige the respondents to deliver up those items which come into their possession, custody, power or control.
The second respondent consents to the orders sought by the applicant.
The first respondent was placed into liquidation after the agreement was made. Consequently, the applicant sought leave from the Court to proceed against the first respondent under s 500(2) of the Corporations Act 2001 (Cth) (the Act).
Even though the first respondent has been placed into liquidation, there is no reason why the orders contemplated by the agreement should not be made. Leave to proceed against the first respondent under s 500(2) of the Act is therefore granted to the applicant.
The liquidator of the first respondent has been served with notice of the proceeding, and did not appear. This probably indicates that the liquidator does not oppose the making of the orders. One of the orders provides that the respondents pay 60% of the applicant’s costs of and incidental to the application dated 24 June 2011 for interlocutory relief in this proceeding. A consequence of the failure of the liquidator to appear and the Court not having had the benefit of any argument by the liquidator is that the liquidator may be liable for those costs. The intention of the Court is that the costs which are the subject of the order be satisfied, if not from the assets of the respondents, then by the liquidator of the first respondent.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 7 March 2013
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