TVBO Production Limited v Zhou

[2013] NZHC 1715

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003320 [2013] NZHC 1715

BETWEEN  TVBO PRODUCTION LIMITED First Plaintiff

WORLD TV LIMITED Second Plaintiff

ANDGENHUA (JASON) ZHOU Defendant

Hearing:                   5 July 2013

Counsel:                  A Gilchrist for Plaintiffs

No appearance for Defendant

Judgment:                8 July 2013

JUDGMENT OF ASHER J (Interim injunction)

Solicitors/Counsel:

A Gilchrist, Auckland.

Mark Lee Lawyers, Auckland.

TVBO PRODUCTION LTD v GENHUA (JASON) ZHOU [2013] NZHC 1715 [8 July 2013]

[1]      This matter has come before the Court in the Duty Judge list.  It is an interim injunction application. There is no appearance for the defendant.

[2]      The plaintiffs claim that they have exclusive satellite broadcasting rights from a number of sources.  Customers in New Zealand pay a subscription to obtain access to the programmes.   An entity trading as Maige TV,  with which  the  defendant Mr Genhua Zhou is associated, has it is claimed, been selling or leasing decoding boxes which enable New Zealand residents to access the programmes owned or subject to the exclusive licence of the plaintiffs.

Service

[3]      When the matter was first called yesterday Mr Gilchrist, while advising that proceedings had been served on Mr Zhou’s lawyer, did not have proof of service. The matter was adjourned to today to allow service to be clarified.  I issued a minute which the Court sent to Mr Mark Lee who appears to act for Mr Zhou informing him of this  morning’s  fixture.    Mr Gilchrist  had  arranged  for the service  of all  the proceedings on Mr Lee.  I have a copy of a signed letter from Mr Lee acknowledging receipt of the documents and stating that he is authorised to accept them on behalf of Mr Zhou.

[4]      Mr Gilchrist appears this morning.   I grant him leave to file an affidavit confirming the service of the proceeding on Mr Lee.

[5]      I am prepared to proceed on the interim injunction hearing on this basis given the urgent context.  Mr Lee acts for Mr Zhou and if he has the documents it must be assumed that Mr Zhou has chosen not to take any steps.  The orders that I am about to make will however lie in Court until Mr Gilchrist files an affidavit confirming that the proceedings were served on Mr Lee.  Mr Gilchrist in the affidavit should attach a copy of Mr Lee’s letter stating he is authorised to accept service.

Serious question to be tried

[6]      I have  considered  the extensive  affidavits  filed  and  the memorandum  of Mr Gilchrist.  I consider that there is a serious issue to be tried.  The second plaintiff appears to broadcast original television programming and has an exclusive licence in New Zealand to broadcast the applicable TVB programming in New Zealand.  Prima facie the two plaintiffs have copyright in the films and broadcasts through ownership of licences.  Copyright would exist in the various films and broadcast material.  On the face of it Mr Zhou is without permission using or showing the work in breach of copyright. There would not appear to be any applicable statutory defences.

[7]      The plaintiffs have paid licencing fees for the programming at issue, and the defendant  who  has  not  paid  such  fees  is  able  to  undercut  it.    If  the  plaintiffs allegations are correct they are suffering a loss of goodwill in the market by the direct loss of custom to the defendant, and possibly also by the goodwill of the market being damaged.

[8]      I accept that both the loss of custom and damage to goodwill will be most difficult to quantify. Therefore, I do not consider that damages would be an adequate remedy.  If I stand back and look at the overall justice, on the face of it the defendant is blatantly copying programmes in breach of copyright and causing the plaintiffs loss.  I consider it just to grant an interim injunction.

[9]      Despite the fact that efforts have been made to serve Mr Zhou since Friday of last week he has not appeared today or taken any steps to contest the proceeding, or explain his actions.  This is also a relevant factor in assessing the overall justice of the situation.

[10]     I  therefore  grant  interim  injunction  orders  in  terms  of  the  draft  orders attached, paragraph 3(a)(i) to (ix).

[11]     The  plaintiffs  also  seeks  particular  discovery.    In  my  view  it  would  be premature to make any discovery orders at this stage, with the defendant not having taken any steps.  No search orders are sought under r 33 of the High Court Rules.

[12]     I am, however, prepared to accede to the plaintiffs request for an order under r 4.26.  That order will require Mr Zhou to file an affidavit within seven days stating the name and address of all persons carrying on that business.

[13]     The relevant rule, r 4.26, refers to persons carrying on business in the name of the firm being sued in the name of the firm, and the Court being able to direct an affidavit stating the name and address of the person carrying on the business.

[14]     The rule does not strictly apply as Maige TV, while the name of the firm, is not  the  defendant.    Rather,  the  plaintiffs  have  opted  to  make  Mr  Zhou  their defendant.  However, the defendant knows little of Maige TV which appears to be the trading name of the entity that is breaching the copyright and, as I have said, Mr Zhou has failed entirely to engage on the issues.  It seems to me that by analogy, although Maige TV is not the name of the defendant, given that there is an issue as to who is behind Maige TV, I have jurisdiction to make this limited order.   It will require Mr Zhou, who is associated with Maige TV, to state the name and address of the person carrying on the business.

[15]     I rely not only on r 4.26, but also on r 1.6(1) which provides that where no form of procedure is prescribed by an Act the Court must dispose of the case as nearly as may be practicable in accordance with the provisions of the rules affecting any similar case.  The position is very similar to that which arises under r 4.26, and indeed if Mr Gilchrist had chosen to join Maige TV as the defendant then r 4.26 would directly apply.

[16]     I accordingly make the order in terms of paragraph 3(c) of the draft order.

[17]     It is premature to make any costs order as Mr Zhou has not been heard, and because these are interim orders.

[18]     Mr Zhou may apply to set aside the orders on three days notice.  However, I record that do not regard the position as being that the orders have been made on a without notice basis.  I am satisfied, for the reasons that I have set out, that Mr Zhou has notice of these proceedings.  Therefore, if he applies to set the orders aside, in

the absence of a credible explanation as to why he has chosen to take no steps, the principles that should apply to any hearing of that application will be those that apply to applications to set aside orders made on notice.

……………………………..

Asher J