Texas Way P/L & Ors v Thanh Hung Video (Aust) P/L & Anor Thanh Hung Video (Aust) Ltd & Anor v Texas Way P/L & Ors

[1992] FCA 973

JUDGMENT No. .2.31.... J"~.A. L/

IN THE FEDERAL COURT OF AUSTRALIA

)

1

VICTORIA DISTRICT REGISTRY

i	VG 3 7 3 of 1992
1	VG 3 5 3 of 1992

GENERAL DIVISION

1

VG 3 7 3 of 1992

BETWEEN:	TEXAS WAY PTY LTD. TINOS PTY LTD. TVB INTERNATIONAL LTD. TELEVISION BROADCAST LTD and TVB
INTERNATIONAL  (OVERSEAS\ LTD

(Applicants)

AND :  THANH HUNG VIDEO fAUST\ PTY LTD
and OUOC HUNG VIDEO PTY LTD

(Respondents)

BETWEEN:  THANH HUNG VIDEO (AUSTI LTD and
THUAN HUNG VIDEO PTY LTD

(Applicants )

AND :	TEXAS WAY PTY LTD. TINOS PTY LTD,
TVB INTERNATIONAL LTD and TELEVISION
BROADCAST LTD

(Respondents)

Coram:  Ryan J

Place: Melbourne

Date:  16 December 1992

providing a bank guarantee within fourteen days in the sum of $30,000 or, in default of agreement on the form of

such security, in such form as is determined by a Deputy
Registrar of the Court.

MINUTE OF ORDERS

THE COURT ORDERS:

1.  That the respondents in the consolidated proceedings, Thanh Hung Video (Aust) Pty Ltd and Quoc Hung Video Pty Ltd, provide security to the applicants in the said proceedings for the costs of the cross-claim therein by

2.   That in default of the provision of security in accordance with paragraph 1 hereof, proceedings on the said cross-claim be stayed.

3.    That the applicants have liberty to apply in respect of the provision of further security for their costs of the said cross-claim.

4.  That the motion on notice dated 2 November 1992 be otherwise dismissed.

5.   That the costs of all parties of the said motion (including any reserved costs) be costs in the cause in the consolidated proceedings.

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,NOTE : Settlement and entry of orders is dealt with in

! Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY GENERAL DIVISION

BETWEEN:	TEXAS WAY PTY LTD. TINOS PTY LTD,
TVB INTERNATIONAL LTD. TELEVISION
BROADCAST LTD and TVB
INTERNATIONAL I OVERSEAS  ) LTD

(Applicants)

AND:  THANH HUNG VIDEO IAUST) PTY LTD
and OUOC HUNG VIDEO PTY LTD

(Respondents)

BETWEEN:  THANH HUNG VIDEO (AUST) LTD and
THUAN HUNG VIDEO PTY LTD

(Applicants)

AND:	TEXAS WAY PTY LTD. TINOS PTY LTD,
TVB INTERNATIONAL LTD and TELEVISION
BROADCAST LTD

(Respondents)

Coram:  Ryan J

Place: Melbourne

Date:  16 December 1992

REASONS FOR JUDGHENT ON MOTIONS

FOR SECURITY FOR COSTS AND IN SUPPORT

OF UNDERTAKING AS TO DAMAGES

Rvan J:  There is before the Court a motion on notice dated

2 November 1992 as amended by leave which I granted on 23

November 1992 for orders:

"1. That the applicants in proceeding No VG 353 of 1992 give

security [for costs] as the Court thinks fit.

2.    That the respondent Quoc Hung Video Pty Ltd provide security for costs of its cross clarm and that Thuan Hung Video Pty Ltd provide such security as the Court sees fat arrsing from its undertaking given to the Court on 22 October 1992."

By their amended statement of claim in proceedings NO VG 373 of 1992 the applicants allege that copyright subsists in a range of cinematographic films and sound tracks and that the first applicant, Texas Way Pty Ltd ("Texas Way") is licensed by the second applicant, Tinos Pty Ltd as owner of the copyright for the territory of Australia in the relevant year, to authorise the publication and distribution of that material in Victoria. It is then alleged that Thanh Hung Vldeo (Aust) Pty Ltd ("Thanh Hung") and Quoc Hung Video Pty Ltd ("Quoc Hung") have been licensed by Texas Way to reproduce and distribute the material as and when produced in Hong Kong during the year ending 31 January 1993. It is further alleged that Thanh Hung and Quoc Hung have been reproducing more copies of the copyright material than they were authorised by Texas Way to reproduce, or have been reproducing or distributing copyright material obtained from sources other than Texas Way.

By an order made on 22 October 1992, Heerey J directed,

amongst other things, that proceeding No VG 373 of 1992 be	joined with proceeding No VG 353 of 1992 and that thereafter
all pleadings and other interlocutory steps and affidavits be filed in proceeding No VG 373 of 1992. Accordingly, on 17 November 1992 a defence and cross claim was filed in the consolidated proceedings on behalf of the respondents in proceedings No VG 373 of 1992, Thanh Hung and Quoc Hung.
In their defence and cross claim, Thanh Hung and Quoc Hung allege that, on or about 13 May 1992, they acquired by agreement the right to distribute and let on hire in Victoria video film and sound track programmes in the Cantonese and Vietnamese languages made by Hong Kong ATV Enterprises Ltd and Asian Television Ltd which are said to be competitors of the applicants. It is then pleaded that, in consequence, the applicants refused, in breach of pre-existlng llcence agreements with Thanh Hung and Quoc Hung, to supply to those companies in appropriate quantities master tapes and associated material made by the third and fourth applicants ("TVB" and "TVBI") and, subsequently, on or about 27 August 1992 purported to terminate those licence agreements. It is further alleged that the applicants have offered to supply Thanh Hung and Quoc Hung with TVB and TVBI films and associated material, only on condition that Thanh Hung does not acquire video programmes from the two named competitors of the applicants. The conduct attributed to the applicants is alleged to contravene s.47 of the Trade P r a c t i c e s A c t , and it is pleaded by paragraph 43 of the defence:

"In the premises: 

(a)	~t is unconscionable for the applicants to approach t h ~ s Court for equitable relief in respect of asserted breaches of the agreements made between the Appl~cants and the Respondents;
(b)	each of the Applicants approaches thls Court in its equitable jurisdiction wlth unclean hands and is thereby disentrtled from seeklng such relref."

By their cross claim Thanh Hung and Quoc Hung allege that the applicants threaten and intend, unless restrained, to refuse to supply Thanh Hung and Quoc Hung with master tapes of TVB and TVBI video programmes and associated material, which refusal is alleged to be in breach of the licence agreements and in contravention of s.47 of the T r a d e P r a c t i c e s A c t . Accordingly, Thanh Hung and Quoc Hung seek a mandatory injunction requiring the continued supply to them of TVB and TVBI video programmes and associated material and an injunction restraining the applicants from acting on or implementing a purported termination of the licence agreements with Thanh Hung and Quoc Hung.

A further injunction is sought restraining the applicants from :

"... refusing to supply the Respondents wlth vldeo programmes ln the

Mandar~n, Cantonese, Cambod~an and Vietnamese languages made from time to time by the Appl~cants and released to the general publlc of
Australia for the reason that the Respondents have acqurred vldeo
programmes made by Hong Kong ATV Enterprlses Llmited or As~an
Televlslon Lim~ted or, alternatively, have not agreed not to acquire
vldeo programmes made by Hong Kong ATV Enterprlses Limlted or Aslan
Television Limited."

Thanh Hung and Quoc Hung then seek declarations that the applicants have committed breaches of the licence agreements and have contravened s.47 of the T r a d e P r a c t i c e s A c t . The

prayer for relief in the cross-claim concludes with a claim	for damages and orders pursuant to s.87 of the T r a d e P r a c t i c e s
A c t to compensate Thanh Hung and Quoc Hung for loss and damage
suffered and likely to be suffered by them as a result of the
alleged contraventions of the T r a d e P r a c t i c e s A c t .
The material discloses that Thanh Hung is a non-trading company with a paid-up capital of $2. It is not shown to own any real estate in Victoria. It is conceded by Mr Hayes QC
who appears with Mr I Jones for the respondents to the motion for security, that the evidence does not establish on the balance of probabilities that Thanh Hung could satisfy an order for costs on the cross-claim if one were made against it.
Quoc Hung was incorporated on 3 May 1991 and does not appear to own any real property in Victoria. It apparently conducts its business from premises in Fitzroy which it leases from a M r and Mrs Takas. Quoc Hung's income tax return for the year
ending 30 June 1991 discloses that it has issued capital of $10. Its net assets are nil since its fixed assets comprising plant and equipment and motor vehicles amounting to $23,224.00 are exactly offset by a secured loan of $23,234.00. It recorded an operating loss for the year ended 30 June 1991 of $10.00. The financial details which I have just recited are drawn from documents produced by the secretary or other proper officer of Quoc Hung on subpoena to produce:

"1.	Copres of all annual returns of Quoc Hung Video Pty Ltd.
2.	All books of account, cash books, bank statements, cash receipt
books and all other flnanclal records in whatever form.
3.	Profit and Loss statements for the years ended 30 June, 1991 and 30 June, 1992 and balance sheets as at 30 June, 1991 and 30 June, 1992.
4.	Copies of all annual tax returns of Quoc Hung Video Pty Ltd lodged with the Australian Taxatron Office."

I infer that the documents to which I have referred are the latest available to Quoc Hung which answer that description. Having drawn that inference, I am satisfied that Quoc Hung could not pay the costs of the cross-claim if an order were made against it.

In the light of the concession made in respect of Thanh Hung and my finding as to Quoc Hung, it becomes necessary, by application of the principles enunciated, for example, in

Parkinson & CO v Triplan Ltd 119731 QB 609, to consider

whether the Court should exercise its discretion to require either or both of Thanh Hung and Quoc Hung to provide security for the costs of their cross-claim.

In Parkinson & CO Ltd v Triplan Ltd (supra) Lord Denning M.R.,

with whom Cairns and Lawton L.JJ. agreed, after reviewing some earlier, conflicting, authorities including Pure Spirit CO v

Fowler (1890) 25 QBD 235 said, at 626:

"There seems to have been some misapprehension on the matter in the past. The sooner it is put right the better. If there LS reason to belleve that the company cannot pay the costs, then securlty may be

ordered, but not must be ordered. The court has a dlscretlon w h ~ c h

it will exerclse considering all the circumstances of the partrcular

case. "

Lawton L.J. agreed with those observations saying, at 628:

"I agree with Lord Denning M.R. that the effect of section 447 is that once it is established by credlble evrdence that there LS reason to believe that the plaintiff company will be unable to pay the costs of the defendants ~f they are successful in t h e ~ r defence, the court has a discretron, and that dlscret~on ought not to be hampered by any special rules or regulations, nor ought it to be put into a straitjacket by consrderations of burden of proof. It is a discretion which the court will exercme having regard to all the circumstances of the case. For those reasons I too would dismlss this appeal."

Several factors have been identified in this Court and elsewhere as requiring to be balanced in the exercise of the

discretion described in Parkinson & CO Ltd v Triplan Ltd (supra). See e.g. Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Bell Wholesale CO Pty Ltd v Gates Export Corporation (1984) 52 ALR 176; Sent v Jet Corporation of Australia Pty Ltd (1984) 54 ALR 237.

Not all of those factors appear to have any bearing on the present application for security for costs. Mr Hess for the applicants in the consolidated proceedings referred to the likely prospects of success of the respective parties and urged that a conclusion that those prospects were evenly balanced should weigh in favour of an order for security.

I am unable, as was the judge at first instance and the Full

Court in Bell Wholesale CO Pty Ltd v Gates Export Corporation (supra) at 177, to make even a speculative assessment of what the outcome of the cross-claim is l~kely to be. However, like French J in Bryan E Fencott Pty Ltd v Eretta Pty Ltd (1987) 16

FCR 497 at 514, I am prepared to assume, for the purpose of

exercising the present discretion, that the cross-claim has

been brought bond fide and has a reasonable prospect of	success. I say that notwithstanding s.51(3) of the Trade
Practices Act to which Mr Hess for the applicants has drawn my attention. That sub-section provides, so far as is relevant:

" ( 3 ) A contravention of a provrsion of this Part other than sectron 46, 46A or 4 8 shall not be taken to have been commrtted by reason

of -

(a)

the imposrng of, or giving effect to, a condrtion of -

(i)	a licence granted by the proprietor, licensee or owner of a patent, of a registered desrgn, or of a copyright, or of EL r~ghts within the meaning of the circult Layouts Act 1989 or by a person who has applied for a patent or for the registration of a design; or
(ii)	assignment of a patent, of a reg~stered design, of a copyright or of EL r~ghts w ~ t h ~ n the meaning of the Circuit Layouts Act 1989 or of the rrght to apply for a patent or for the reg~stration of a design,

to the extent that the condition relates to -

(v)   the work or other subject matter in which the

copyr~ght subsists;'

It is by no means clear to me that the alleged refusal to supply material to Thanh Hung and Quoc Hung, or the alleged offer to supply to them only on condition that they do not acquire programmes from Hong Kong ATV Enterprises Ltd and Asian Ltd could be described as the imposing of, or giving effect to, a condition of a licence granted in respect of material produced by TVB or TVBI and related to that material.

Mr Hayes Q.C. argued that the discretion to order securlty is

not usually exercised against a cross-claimant where the cross-claim is essentially defensive in character. However, I do not consider that the preponderance of authorities in this

area goes that far.

It is true that in Washoe Mining Company v Ferguson (1866) LR

2 Eq. 371 it was held that the principle of not making the plaintiff in a cross suit give security is that the crossbill is a mere defence to the original bill. For an example of the application of that principle, see Accidental and Marine Insurance Co. v Mercati (1866) LR 3 Eq. 200. In that case a

company had, before it went into liquidation, filed a bill seeking a declaration that a marine policy on which it was being sued by the defendant, had been fraudulently obtained and was void. The Court refused to order it to provide security for the defendant's costs, observing at 203:

"Where a company rs defendrng itself, rt must be regarded as, in substance, a Defendant, and, therefore, is not to be called upon to give secur~ty. In this rnstance the company must be consrdered as a Defendant, and not as a 'plaintrff or pursuer' withln the meanrng of

the Act, this b e ~ n g virtually a cross-sult."

Ormiston J in Interwest L t d v Tricontinental Corporation Ltd (1991) 5 ACSR 621 analysed Mercati's Case and the subsequent

line of authority, saying, at 626:

"The authorrties on the effect of counterclalms and cross-claims are by no means satrsfactory. In my experience counterclarmants are rarely required to provrde security and the exrstence of a counterclaim frequently drssuades defendants from pursuing an applicatron for securlty, but there is no doubt that the jurxsdiction exists to grant securlty and is "unfettered" ln the sense described. Perhaps rt may be sald that the authoritles support the propos~tion

that securlty wrll only ordrnarlly be ordered agalnst a party who rs in substance the plaintiff, and that an order ought not to be made agarnst parties who are defending themselves and thus forced to litrgate: cf Accidental & Marzne Insurance CO v Mercatz (1866) 3 Eq 200. That would appear to be an overstatement, but the fact that a plarntlff, or counterclaunant, has lnstltuted essent~ally defensive proceedmgs, must be a slgnrficant factor rn the exercise of the court's d~scretron. A number of the other cases are d~scussed in Delany pp 17-25. Only three authorrties were referred to me in argument: New Fenix Compagnre Anonyme d'Assurances de Madrid v	General Accident Fire & Lrfe Assurance Corporation Ltd [l9111 2 KB
619; T Sloyan & Sons (Builders) Ltd v Brothers of Christran
Instructzon 119741 3 All ER 715 and Sydmar Pty Ltd v Statew~se Developnents Pty Ltd (1987) 11 ACLR 616. In the New Fenix case the plarnt~ffs, who were resident outside the jur~sdrction, brought a separate cross-action against the applicants for security. The conclusion reached by the Court of Appeal 1s perhaps best expressed by Vaughan Williams LJ at 625-6: "One must look at each case to see whether in substance the claim set up by a defendant is set up by him by way of defence to the claim agarnst him . . . I do not think that there is any hard and fast rule on the subject. We have to consider whether, Ln substance, upon the facts of the particular case, the defendants in the or~ginal action are to such an extent plaintiffs ln the cross-act~on, that they ought accordrng to the general practice in the matter to be ordered to glve security for costs, because they have taken up the position of plaintiffs, irrespective of defence to the origlnal action."

After referring to the relevant propositions from the catalogue distilled by Smart J in Sydmar's case, his Honour continued, at 627:

"Principally it would appear necessary to characterise the proceedings m respect of whrch securrty is sought. If they are "defensrve" proceedings, either directly resistrng proceedrngs already brought or seekrng to "half self-help procedures", it would seem that to require security would be oppressive, or at least would provrde serrous grounds for refusing to make an order. At the least, it rs a factor to be consrdered in the exercrse of the drscretron. In partrcular, it rs a basrs for reducrng the amount of security ordered to a sum related to the costs of those clarms whrch cannot be characterised as defensive: cf Sloyan's case, supra."

A similar exercise in characterisation was undertaken by

Wilcox J in Amalgamated M~ning Services Pty Ltd v Warman International Ltd (1988) 19 FCR 324 where his Honour concluded, at 328:

"In the present case the application also relies upon ss.52 and 53(g) of the Trade Practices Act 1974 (Cth); but rt appears from what has been said by counsel that these clarms wrll not raise any separate factual rssue. It seems to be accepted that, rf Warman establishes that the applrcant's actions infringe rts copyrrght, thrs wrll constrtute a defence to all of the clarms made by the applicant; and, conversely, that if it does not do thrs, the applrcant would be entitled to succeed m the proceedrng, both rn relatron to the clarm under s.202 of the Copyright Act and the claims under ss.52 and 53(g) of the Trade Practices Act. I should add that the respondents have not only frled a defence. They have also filed a cross-clarm. In that cross-claim the respondents assert their entitlement to the	copyright in the relevant drawrngs and they allege varrous	infrrngements by Amalgamated Minrng; the alleged rnfrrngements being
constrtuted by reverse-eng~neermg rather than by copyrng the drawrngs themselves.
It seems to me that this is a case wrthin the prrncrple adopted in the authorities to which I have referred. The case is perhaps not as strong as in W~lley v Synan, where the plaintiff was forced to take
proceedings or lose any subsequent claim to the money which had been
taken from him by the Customs Department. However, m a practical sense, the present applicant has been forced to take legal action."

It is true that Thanh Hung and Quoc Hung have pleaded alleged contraventions of s.47 of the Trade Practices Act as defences to the claim for equitable relief made by the applicants. However, the primary cause of action invoked by the applicants

is that afforded by s.115 of the Copyright Act 1968 which authorises both the grant of an injunction and an award of damages. The equitable defences pleaded by paragraph 43 of the defence which I have already quoted cannot, in my view, assist the respondent in defeating that statutory entitlement to relief. Accordingly, the complex issues of the reason for which the applicants engaged in the practice of exclusive dealing (if they did), whether that conduct had the likely effect of substantially lessening competition in a relevant market, and the definition of that market will all arise for determination, in substance, in the cross-claim.

I am not persuaded that any public lnterest which may exist in the application of s.47 of the Trade Practices Act to the market in the distribution and letting on hire of video programmes in various Asiatic languages should operate to relieve Thanh Hung and Quoc Hung of a liability to provide security for the costs of their cross-claim if such a liability should otherwise attach to them.

It will be apparent that the issues under s.47 which I have	just identified as raised in substance by the cross-claim will
add significantly to the time and costs to be expended in determining the consolidated proceedings as a whole.
I therefore regard it as an appropriate exercise of the Court's discretion to require provision of security for the applicants' costs of the cross-claim. However, since an identifiable part of the cross-claim can be characterised as defensive, the Court would not be justified in fixing the amount of security by reference to the costs likely to be awarded to the applicants if the cross-claim wholly fails. This approach, I consider, conforms with that taken by Ormiston J in Interwest Ltd v Tricontinental Corporation Ltd
(supra) .
On 30 October 1992, Messrs Karamountzos & Kiatos, the solicitors for Thanh Hung and Quoc Hung, wrote to the solicitors for the applicants requesting that the applicants provide security for the costs of the claim. In support of that request, it was said:

"We also estmate the Respondents' costs in the preparatron and trial

of these proceedings would be $100,000.00 made up of:

(a)	Counsels' fees for $6,000.00 per day for 10 days;
(b)	Solicitors' costs for $1,000.00 per day for 10 days;

(c) Costs of preparation of $30,000.00."

was compromised and an order by consent was made on 4 November	[A motion by Thanh Hung and Quoc Hung for security of costs
1992 requiring the applicants to give security in the sum of $75,000.00].

The solicitor for the applicants has sworn an affidavit in support of their application for security for costs in which he has estimated his clients' costs of a ten day trial, on assumptions similar to those made by Messrs Karamountzos & Kiatos, at $120.000.00. The excess over the estimate of the costs of Thanh Hung and Quoc Hung is said to be explicable by additional expenses of preparation resulting from the fact that a number of the applicants' witnesses llve in Hong Kong. The applicants' solicitor has also sworn that:

"(V) The time involved in provrng the Applicants' copyright in the cinematographic f~lms the subject of these proceedrngs is 3-4 days. The tune involved Ln provrng the alleged breach of the Applrcants' copyright rs 3-4 days and the tune involved in dealing with the matters raised rn the Respondents' cross-claim re 3-4 days;"

The same solicitor has deposed on information from Counsel to a belief that:

"...costs in the order of $50,000 will be incurred by the Applicants
rn defending the matters ralsed by the Respondents' cross-claim."

The discretionary factors involved in making an order for security in the circumstances described above, do not lend themselves to a precise arithmetical assessment. Moreover, I accept, as Beaumont J did in Fat-sel Pty Ltd v Brambles Holdings Ltd (1985) 3 ACLC 312, the correctness of the approach taken by Fullagar J in Brundza v Robbie & CO (No 2) (1952) 88 CLR 171 at 175 where his Honour observed that:

"...m ordering securaty for costs, the Court does not set out to
give a complete and certain rndemnrty to a respondent:	see Aberdare
& Plymouth CO v Hankey (1888) 32 SJ 644."

Taking a similarly broad approach, and having regard to my overall view of the defensive and aggressive elements of the cross-claim, I regard it as appropriate to order the provision of security in the sum of $30,000.

On 22 October 1992, Thuan Hung Video Pty Ltd ("Thuan Hung") as second applicant with Thanh Hung in proceedings No VG 353 of 1992 joined in giving, as consideration for the interlocutory relief ordered by Heerey J on that day, the usual undertaking as to damages. However, Thuan Hung is not a cross-claimant in the consolidated proceedings and has taken no part in them since the making of Heerey J's order on 22 October 1992. It is conceded by Mr Hayes QC who, with Mr Jones, also appeared for Thuan Hung on the present motion that Thuan Hung, which was incorporated on 2 March 1992, would be unable, on the present state of the evidence, to satisfy an order for payment of damages if one were made against it in consequence of the undertaking given to Heerey J.

Since Thuan Hung has not claimed any relief in the

consolidated proceedings, and since security in respect of the

undertaking as to damages has not been sought from either Thanh Hung or Quoc Hung who remain actively involved in the litigation, I do not consider it appropriate to require Thuan Hung Video Pty Ltd to provide security of that kind. Nor do I

think that Thuan Hung should be ordered to provide any	security for costs.
In the result I shall order:
1. That the respondents in the consolidated proceedings, Thanh Hung Video (Aust) Pty Ltd and Quoc Hung Video Pty Ltd, provide security to the applicants in the said proceedings for the costs of the cross-claim therein by providing a bank guarantee within fourteen days in the

sum of $30,000 or, in default of agreement on the form of such security, in such form as is determined by a Deputy Registrar of the Court.

2.   That in default of the provision of security in accordance with paragraph 1 hereof, proceedings on the said cross-claim be stayed.

3.    That the applicants have liberty to apply in respect of the provision of further security for their costs of the said cross-claim.

4.   That the motion on notice dated 2 November 1992 be otherwise dismissed.

5.   That the costs of all parties of the said motion (including any reserved costs) be costs in the cause in the consolidated proceedings.

I certify that this and the preceding

fourteen (14) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Ryan

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Associate: q471

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Date : 16 December 1992

Counsel for the applicants

in the consolidated proceedings:

Solicitor for the applicants

in the consolidated proceedings:	Middletons Moore and Bevins
Counsel for the respondents in
the consolidated proceedings and
for the second applicant in
proceeding VG 353 of 1992:	M r P R Hayes QC and
M r I R Jones
Solicitor for the respondents in the consolidated proceedings and for the second applicant in
proceeding VG 353 of 1992:	Karamountzos and Kiatos