Elizabeth CHONG Pty Ltd v Brown - [2011] FMCA 565

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ELIZABETH CHONG PTY LTD & ANOR v BROWN

[2011] FMCA 565

Federal Magistrates Act 1999, ss.21, 22, 23, 24
Federal Magistrates Court Rules 2001, r. 27
Civil Procedure Act 2005 (NSW), ss.26, 27, 56

Aiton v Transfield [1999] NSWSC 996; (1999) 153 FLR 236
Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Limited & Ors [2010] FMCA 932; (2010) 244 FLR 335
Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709
Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194
Morrow v chinadotcom Corporation [2001] NSWSC 209
Strategic Publishing [2003] NSWSC 1134

First Applicant:

ELIZABETH CHONG PTY LTD

Second Applicant:

ELIZABETH CHONG

Respondent:

RONALD VIVIAN BROWN

File Number:

MLG 720 of 2010

Judgment of:

Riethmuller FM

Hearing date:

2 September 2010

Date of Last Submission:

2 September 2010

Delivered at:

Melbourne

Delivered on:

22 July 2011

REPRESENTATION

Counsel for the Applicant:

Mr Fitzgerald of Counsel

Solicitors for the Applicant:

Davies Collison Cave Law

Counsel for the Respondent:

Mr Scott

Solicitors for the Respondent:

Dwyer & Co

ORDERS

The Respondent’s application dated 2 August 2010 for a stay of the proceedings be dismissed.
Costs be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 720 of 2010

ELIZABETH CHONG PTY LTD

First Applicant

ELIZABETH CHONG

Second Applicant

And

RONALD VIVIAN BROWN

Respondent

REASONS FOR JUDGMENT

The second applicant in this case is a chef, instructor, author, and an expert in Asian cooking. The respondent is a film video producer.
In February 2000, the applicants and the respondent entered into an agreement for the production of a series of Chinese cooking programs entitled “Elizabeth Chong’s Tiny Delights” (‘the Film Agreement’).
The programs were produced and a companion cookbook was produced.
A dispute has arisen between the parties with respect to the operation of the Film Agreement, resolving in proceedings being issued in the Federal Magistrates Court on 17 May 2010. Points of claim and defence together with affidavits have been filed.
The issue that the Court must determine on this application is whether or not the proceedings should be stayed until the parties have completed a dispute resolution procedure as described in clause 21.5 of the Film Agreement. The relevant clause of the Film Agreement provides:
25.5 In the event of a dispute arising between the parties in relation to this Agreement, the parties agree that, except where there is an application for urgent interlocutory relief, they will meet together to discuss in good faith the resolution of the dispute. In the event that those discussions do not lead to a resolution within fourteen days of notice given by either party, either party can, by notice in writing, cause the matter to be referred for mediation under the auspices of the Arts Law Centre of Australia ACN 002 706 256 or, if this Centre is unable to provide…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 565
Decision Date: 22 July 2011

CaseChat Overview and Summary

Elizabeth CHONG Pty Ltd v Brown was a case heard in the Federal Court of Australia. The dispute involved the Respondent's application for a stay of the proceedings brought by the Applicant against the Respondent. The Applicant sought to enforce a judgment against the Respondent, which was initially granted in the Supreme Court of Queensland. The Respondent applied for a stay of the proceedings in Australia, arguing that the matter should be dealt with in the courts of Singapore, where the underlying contract was executed.

The primary legal issue before the Court was whether the Australian court should grant the Respondent's application for a stay of the proceedings, or alternatively, whether the Court should permit the Applicant to enforce the judgment in Australia. The Court needed to consider the relevant jurisdictional principles, the enforceability of foreign judgments in Australia, and the application of the doctrine of comity.

The Court found that the matter was appropriately before the Australian courts as the judgment creditor had chosen to enforce the judgment in Australia. The Court held that the doctrine of comity did not compel the Australian courts to stay the proceedings in favour of the Singaporean courts. The Court also found that the judgment was enforceable in Australia and that there were no grounds for a stay of the proceedings. The Respondent's application for a stay of the proceedings was therefore dismissed, and the costs were reserved.

Orders

Orders of the court

The Respondent’s application dated 2 August 2010 for a stay of the proceedings be dismissed.

Costs be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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