Knight v Beyond Properties Pty Ltd & Ors

[2009] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S625 of 2007

B e t w e e n -
ANDREW KNIGHT
Applicant
and
BEYOND PROPERTIES PTY LTD
First Respondent
BEYOND INTERNATIONAL LTD
Second Respondent
DISCOVERY COMMUNICATIONS INC

Third Respondent

THE SPECIAL BROADCASTING SERVICE CORPORATION

Fourth Respondent

FOXTEL MANAGEMENT PTY LTD

Fifth Respondent

BEYOND PRODUCTIONS PTY LTD

Sixth Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 2009, AT 11.56 AM

__________________

MR J.J.J. GARNSEY, QC: May it please the Court, I appear with my learned friends, MS S. CHRYSANTHOU and MR R.M. HIGGINS, for the applicant. (instructed by the applicant)

MR D.K. CATTERNS, QC: May it please the Court, I appear with my learned friends, MS S.J. GODDARD, SC and MS H.P.T. BEVAN, for the respondent. (instructed by DLA Phillips Fox)

GUMMOW J: Are you still under orders elsewhere?

MR CATTERNS: No, I am not, your Honour, thank you. I am very grateful for the Court’s indulgence though.

GUMMOW J: Yes, Mr Garnsey.

MR GARNSEY: Your Honours, in this decision, the subject of this application, the Full Federal Court, notwithstanding a finding of reputation of the applicant in the name marked Mythbusters in relation to the applicant’s Mythbusters books, upheld a decision of the trial judge that that the respondent’s use of the name Mythbusters in relation to its television ‑ ‑ ‑

GUMMOW J: Is your client the litigant in Knight v Beyond Properties Pty Ltd [2007] FSR 813?

MR GARNSEY: Yes, your Honour. That, I think, was a trial which took place after the trial in this matter but before the appeal.

GUMMOW J: Yes, judgment was delivered on 24 May 2007 in the United Kingdom.

MR GARNSEY: Fortunately or unfortunately in time for the appeal, if your Honour pleases. Your Honour, the Full Court came to the conclusion by upholding the trial judge’s findings and reasoning that because of the greatly different content and format between the applicant’s Mythbusters books and the respondent’s Mythbusters TV show, an impossible misapprehension on the part of the class of too many viewers who knew of the applicant’s books ‑ ‑ ‑

GUMMOW J: Do you not have to focus first on your difficulties with reputation?

MR GARNSEY: Yes, the reputation was found in relation to books in Australia. The trial judge found that there was reputation in the applicant in relation to books, but his Honour then ‑ ‑ ‑

GUMMOW J: Looking at paragraph 13 of the Full Court’s reasons which were reported in 242 ALR 586:

no business records were produced on which reliable calculations of actual sales . . . could be made, and that no convincing explanation was offered for the absence of this evidence.

MR GARNSEY: Yes, your Honour. Now, we accept that, but the fact is that the Full Court proceeded on the basis…

CaseChat Overview and Summary

Knight (the applicant) sought to restrain Beyond Properties Pty Ltd and others (the respondents) from continuing with a development project. The applicant alleged that the respondents had breached their obligations under a deed of covenant and settlement, which had been entered into to resolve a previous dispute concerning the development. The applicant sought an injunction to prevent further work on the development, arguing that the respondents' actions constituted a repudiation of the deed. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the respondents' conduct in proceeding with the development amounted to a repudiation of the deed of covenant and settlement. This required the court to consider the nature of the obligations undertaken by the parties in the deed and to assess whether the respondents' actions demonstrated an intention no longer to be bound by its terms, thereby giving the applicant the right to terminate the deed and seek damages or other relief.

The High Court found that the respondents' actions did not constitute a repudiation of the deed. Their Honours reasoned that the respondents had not evinced an intention to abandon or altogether refuse to perform their obligations under the deed. Instead, the court determined that the respondents' conduct was consistent with an interpretation of the deed that permitted the actions they had taken. Consequently, the applicant had not been entitled to treat the deed as repudiated. The court therefore dismissed the applicant's appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established