Tszyu v Fightvision Pty Ltd

CITATION:	TSZYU v FIGHTVISION PTY LTD [2001] NSWCA 103
FILE NUMBER(S):	CA 40708/00
HEARING DATE(S):	14 December 2000
JUDGMENT DATE:	18 April 2001
PARTIES :	KONSTANTIN TSZYU v FIGHTVISION PTY LTD & ANOR
JUDGMENT OF:	Mason P at 1; Priestley JA at 63; Powell JA at 65

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC 50073/00
LOWER COURT JUDICIAL OFFICER :	Hunter J

COUNSEL:	Appellant: M R Aldridge SC/P Coleman Respondent: FS McAlary SC/AS Bell
SOLICITORS:	Appellant: Benjamin & Khoury Respondent: Back Schwartz Vaughan
CATCHWORDS:	Anti-suit injunction - breach of contract - whether proceedings instituted in the Industrial Commission during Supreme Court proceedings constituted an abuse of process - issue estoppel - s106 Industrial Relations Act 1996 - appeal dismissed. D
DECISION:	Appeal dismissed with costs

CA 40708/00

MASON P

PRIESTLEY JA

POWELL JA

Konstantin TSZYU v FIGHTVISION PTY LTD & Anor

Mr Tszyu is a boxer. In January 1992 he entered into a written contract with Bill Mordey’s Classic Promotions Pty Ltd. In January 1993 the contract was novated and substituted with a contract between Fightvision, Mr Tszyu and Mr Lewis, a trainer. In the novated contract Mr Tszyu had promised not to box professionally anywhere for three years, and after this, for a further two years at the option of Fightvision. In January 1995 Fightvision exercised the option, extending the term of its contract to 15 January 1997.

In early 1995 Mr Tszyu repudiated the contract. Fightvision began proceedings in the Supreme Court against Mr Tszyu for breach of contract and other companies for having procured Mr Tszyu to breach his contract. Bainton J found against Mr Tszyu, a decision which was later upheld in the Court of Appeal. In November 1999 a bankruptcy notice was served on Mr Tszyu by Fightvision regarding the judgment debt and bankruptcy proceedings were begun in the Federal Court.

On 2 April 1997, the sixth day of the hearing before Bainton J, Mr Tszyu filed a summons in the Industrial Commission (the Commission) seeking relief under the Commission’s powers to declare contracts void or varied - s106 of the Industrial Relations Act 1996 (the Act). The original summons in the Commission sought that the contract as novated and the purportedly exercised option be declared void.

On the seventh day of the hearing, Mr Tszyu applied to Bainton J for an order that the issue of liability be determined as a preliminary matter. Counsel indicated at trial that the Industrial proceedings were intended to safeguard Mr Tszyu’s interests. If Bainton J found against him that a contract had been in place, he would apply in the Commission to have the entitlement varied as the Commission saw fit under s106. Bainton J refused this application twice. Mr Tszyu also applied to Bainton J to defer determination of damages in favour of Fightvision until after the resolution of the Commission proceedings. This was also refused.

In May 2000 the summons in the Commission were amended to include a claim for monetary…