Yau's Entertainment Pty Ltd v Asia Television Ltd [2002] FCAFC 378

FEDERAL COURT OF AUSTRALIA

Yau's Entertainment Pty Ltd v Asia Television Ltd [2002] FCAFC 378

PRACTICE AND PROCEDURE – Variation of orders before entry – Circumstances in which variation will be made. Federal Court Rules Order 35 rule 7 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 applied De L v Director General, NSW Department of Community Services [No 2] (1997) 190 CLR 207 cited DJL v Central Authority (2000) 201 CLR 226 cited Diamond Hill International Pty Ltd v XU [2001] FCA 531 cited Maritime Union of Australia v Geraldton Port Authority [2001] FCA 236 cited Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 cited

YAU'S ENTERTAINMENT PTY LTD v ASIA TELEVISION LIMITED and ATV ENTERPRISES LIMITED N 1107 of 2001 SUNDBERG, FINKELSTEIN and HELY JJ 27 NOVEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1107 OF 2001

BETWEEN: YAU'S ENTERTAINMENT PTY LTD

APPELLANT

AND: ASIA TELEVISION LIMITED and

ATV ENTERPRISES LIMITED

RESPONDENTS

JUDGE: SUNDBERG, FINKELSTEIN and HELY JJ

DATE OF ORDER: 27 NOVEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The motion, notice of which was filed on 8 October 2002, be dismissed. 2. The respondents pay the applicant's costs of and incidental to the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1107 OF 2001

BETWEEN: YAU'S ENTERTAINMENT PTY LTD

APPELLANT

AND: ASIA TELEVISION LIMITED and

ATV ENTERPRISES LIMITED

RESPONDENTS

JUDGES: SUNDBERG, FINKELSTEIN and HELY JJ

DATE: 27 NOVEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 For reasons given on 28 March 2002 the Court as at present constituted allowed the appellant's appeal and made other orders as follows: "2. The finding of the primary judge that the letter agreement was validly terminated by notice dated 7 April 1999 be set aside and substitute for that determination a finding that the letter agreement was not validly terminated by notice dated 7 April 1999. 3. The declaration and order made on 10 March 2000 be set aside. 4. Declaration 7 made on 30 June 2000 and the orders made on that date be set aside. 5. The order made on 29 June 2001 that the respondent pay the applicant the sum of $24,960 in damages be set aside. 6. The matter be remitted to the primary judge for determination of the quantum of ATVE's monetary claim against the appellant in the light of these reasons. 7. Yau's cross claim be remitted to the primary judge for determination of Yau's claim for damages for wrongful termination of the licence agreement. 8. ATV/ATVE to pay Yau's costs of the appeal. The costs of the proceedings at first instance should be remitted to the primary judge for reconsideration having regard to the outcome of the appeal."