Maxims Entertainment Pty Ltd v Chinatown Enterprises Pty Ltd

[1999] FCA 1300

FEDERAL COURT OF AUSTRALIA

Maxims Entertainment Pty Ltd v Chinatown Enterprises Pty Ltd [1999] FCA 1300

MAXIMS ENTERTAINMENT PTY LTD & ORS v CHINATOWN ENTERPRISES PTY LTD & ORS

NG 918 of 1995

BURCHETT J

SYDNEY
9 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 918 of 1995

BETWEEN:

MAXIMS ENTERTAINMENT PTY LTD
First Applicant

LONG SHONG PICTURES (HK) LTD
Second Applicant

PRO-VISION ENTERTAINMENT LTD
Third Applicant

POWER WORLD PRODUCTION LIMITED
Fourth Applicant

RISING SUN PICTURES LIMITED
Fifth Applicant

AND:

CHINATOWN ENTERPRISES PTY LIMITED
First Respondent

MANDARIN FILMS (AUSTRALIA) PTY LTD
Second Respondent

WING CHEUNG
Third Respondent

THO VINH HUYNH
Fourth Respondent

JUDGE:	BURCHETT J
DATE:	9 SEPTEMBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, I gave reasons for judgment, on 16 December 1998, on an application then made for judgment against the first, third and fourth respondents pursuant to Order 10, rule 7 and Order 20, rule 1.  I found there had been clear failures by those respondents to comply with directions, and particularly with a direction given on 9 September 1998, requiring the filing, in circumstances which had arisen, of an affidavit disclosing the position, insofar as it was able to be ascertained, as to the results of the exploitation of each of the four films which were in question in the proceeding, being a proceeding for breach of copyright, and giving in summary form the financial results of each exploitation.  That was ordered to be done by 20 November, 1998.  It was not done at the time I gave those reasons for judgment, nor has it been done since. 

2. Pursuant to the reasons for judgment that I then handed down, judgment was in fact entered for the applicants, in the case against the first and third respondents, in the sum of $15,680, together with costs in the amount of seven-eighths of the applicants’ costs, including any reserved costs.  The first and third respondents appear to have done nothing, so far as the applicants were concerned, from then until just over six months later, when they filed the motion with which I am now dealing on 22 June 1999, seeking an order setting aside pursuant to Order 35, rule 7, the judgment to which I have referred, and seeking the re-listing of the matter for hearing. 

3. The motion sought that the applicants in the principal proceeding should pay the moving respondents’ costs incidental to the motion.  There is no hint of any reason why an order of that kind was sought.  It was not, then, until 31 August that the affidavit on which counsel now moves was filed in support of the motion.  It is the affidavit of the third respondent, a Mr Wing, and it seeks to canvass aspects of the original dispute, but in doing so it still does not attempt to comply with the direction in default of compliance with which the applicants were successful in having judgment entered in their favour.  Nor does it provide any explanation whatever for the very great delay which has occurred, unless I am to spell such an explanation out of paragraphs which refer to a particular difficulty in obtaining documents.

4. There is no offer to pay the modest sum of the judgment, either to the judgment creditors or into court, or to do anything about the bill of costs, which I am told has been filed for taxation and which is likely to tax at a substantially greater amount.  This case has been a history of delay, and the delays have plainly cost the applicants dearly in legal fees.  It seems to me that there would be very considerable prejudice to the applicants if I were now to set aside this judgment, so as to cause further delay and the incurring of further legal costs, which the applicants might or might not, in the long run, even if completely successful, be able to recover in practice.  I simply do not know.  Both because it does not appear to me that there is any explanation which I should accept as a reasonable justification in the circumstances, and because I am not satisfied that any bona fide defence has been made out which the respondents ought to be permitted, even in the present circumstances, to litigate, I dismiss the motion with costs.

5. The applicants seek indemnity costs.  Indemnity costs are occasionally ordered.  It is a very rare order, and I do not propose to order indemnity costs at this stage, but the first and third respondents are on notice of the applicants’ application.  If there are further unjustified applications in this matter, and Ms Pentelow repeats her application for indemnity costs, I might take a different view.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.

Associate:

Dated:             9 September 1999

Counsel for the Applicant:	Miss J C Pentelow
Solicitors for the Applicant:	Messrs David Cam & Co
Counsel for the First and Third Respondents:	Mr Ma
Solicitors for the First and Third Respondents:	William Chan & Co
Date of Hearing:	9 September 1999
Date of Judgment:	9 September 1999