Top Plus Pty Ltd and Anor v Muse Entertainment Pty Ltd and Ors (No.3)

[2013] FCCA 1390

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOP PLUS PTY LTD & ANOR v MUSE ENTERTAINMENT PTY LTD & ORS (No.3) [2013] FCCA 1390

Catchwords:
ADMINISTRATIVE LAW – Practice & Procedure – costs – payment into Court – no matter of principle.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth)

Top Plus P/L & Anor v Muse Entertainment P/L & Ors (No.2) [2013] FCCA 1363

First Applicant: TOP PLUS PTY LTD

Second Applicant: K-BOX PTY LTD ACN 105 220 157

First Respondent: MUSE ENTERTAINMENT PTY LTD

Second Respondent: CHARLIE JI

Third Respondent: GOLD TYPHOON ENTERTAINMENT LIMITED

Fourth Respondent: EAST ASIA MUSIC (HOLDINGS) LIMITED

Fifth Respondent: EMPEROR ENTERTAINMENT (HONG KONG) LIMITED

Sixth Respondent:  UNIVERSAL MUSIC LIMITED

Seventh Respondent: EAST ASIA RECORD PRODUCTION COMPANY LIMITED

Eighth Respondent: HUMMINGBIRD MUSIC LIMITED

File Number: ADG 216 of 2012

Judgment of: Judge Simpson

Hearing date: 17 September 2013

Date of Last Submission: 17 September 2013

Delivered at: Adelaide

Delivered on: 18 September 2013

REPRESENTATION

Counsel for the Applicant: Mr M Hoile

Solicitors for the Applicant: Thomsons Lawyers

Counsel for the Respondent: Ms K Clark

Solicitors for the Respondent: Commercial & Legal (Legal Services) Pty Ltd

ORDERS

1. The first and second respondents shall pay the applicants’ costs thrown away as a result of the setting aside of the default orders made and the costs in relation to the respondent’s application to have judgment set aside, fixed in the sum of NINETEEN THOUSAND DOLLARS ($19,000) payable forthwith.

2. The first respondent shall pay into the Federal Circuit Court of Australia, within 14 days, the sum of FIFTY THOUSAND DOLLARS ($50,000), which sum shall remain in the Court until further order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 216 of 2012

TOP PLUS PTY LTD

First Applicant

K-BOX PTY LTD ACN 105 220 157

Second Applicant

And

MUSE ENTERTAINMENT PTY LTD

First Respondent

CHARLIE JI

Second Respondent

GOLD TYPHOON ENTERTAINMENT LIMITED

Third Respondent

EAST ASIA MUSIC (HOLDINGS) LIMITED

Fourth Respondent

EMPEROR ENTERTAINMENT (HONG KONG) LIMITED

Fifth Respondent

UNIVERSAL MUSIC LIMITED

Sixth Respondent

EAST ASIA RECORD PRODUCTION COMPANY LIMITED

Seventh Respondent

HUMMINGBIRD MUSIC LIMITED

Eighth Respondent

REASONS FOR JUDGMENT

1. On 17 September 2013, I handed down a decision setting aside my judgment, declarations and orders made in default of attendance on 20 May and 18 June 2013.[1]

   [1]     Top Plus P/L & Anor v Muse Entertainment P/L & Ors (No. 2) [2013] FCCA 1363

2. I then heard from counsel for the parties about any consequential or other orders that would be appropriate in the circumstances.

3. Counsel for the applicants provided written submissions.  The applicants seeks an order that the first and second respondents forthwith pay the applicants’ costs thrown away and of the application to set aside judgment on an indemnity basis which they calculate to be the sum of $25,258,20 inclusive of court fees and GST.  They also seek an order that the respondents’ pay into Court the damages ordered to be paid in the default judgment, namely, the sum of $95,299.56.

4. In relation to the costs sought, the respondent accepts that it should pay the costs thrown away as a result of the judgment being set aside and also in relation to the application to set aside judgment.  They submit however, that there are no special or unusual features that justify an order for costs on an indemnity basis.  They say also that the costs should not be payable forthwith and should await the outcome of the litigation.  They also oppose an order for payment into Court.

5. In my earlier reasons, I found that the second respondent had a legitimate excuse for not attending Court on 20 May 2013.  The circumstances of the second respondent’s non-attendance are not such that I should order indemnity costs. 

6. I propose to make an order that the respondents’ pay the applicants’ their costs thrown away as a result of the judgment being set aside and in relation to the application to set aside judgment fixed in the sum of NINETEEN THOUSAND DOLLARS ($19,000).  I have arrived at this figure after consideration of the schedule of costs that was handed up by counsel for the applicants which schedule indicates the costs that would have been payable if I were to order indemnity costs.  I have also taken into account the Federal Circuit Court Schedule of Costs.  These costs are to be paid forthwith.

7. So far as the order sought by the applicants that the respondents pay into Court the amount of the damages ordered in the default judgment is concerned, I consider that it is appropriate that an amount be paid into Court to abide the outcome of the trial.  The first respondent has not put evidence before the Court to indicate that it has a good defence.  It cannot be said that the first respondent has a genuine case to be tried. 

8. It is likely that damages ultimately to be paid (if at all) will be less than the damages ordered to be paid in the default judgment that has now been set aside.  Without the advantage of further evidence on quantum, I consider that an appropriate amount to pay into Court would be the sum of FIFTY THOUSAND DOLLARS ($50,000).  That sum is to be paid into Court within 14 days or such longer period as the Court may order.

9. I make the orders to be found at the beginning of these reasons.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  18 September 2013