Angus & Julia Stone Pty Ltd v HNOE Limited [2024] NSWSC 627

Supreme Court New South Wales

Medium Neutral Citation: Angus & Julia Stone Pty Ltd v HNOE Limited [2024] NSWSC 627 Hearing dates: 1 May 2024; further written submissions and evidence provided on 6, 10 and 14 May 2024. Date of orders: 24 May 2024 Decision date: 24 May 2024 Jurisdiction: Equity - Commercial List Before: Nixon J Decision: (1) The Plaintiffs file any application for leave to amend the Summons and/or the Commercial List Statement by 7 June 2024, such motion to be returnable on 14 June 2024. (2) The Notice of Motion filed by the Defendants on 15 March 2024 otherwise be dismissed. (3) The Plaintiffs pay the costs of the Defendants' Notice of Motion up to 1 May 2024, and there be no order as to costs of the Notice of Motion after that date. (4) The proceeding be stood over for directions on 14 June 2024. Catchwords: PRACTICE AND PROCEDURE – application by defendants for permanent stay – whether agreement contained exclusive jurisdiction clause – where not all parties to the proceeding were parties to the relevant agreement – where plaintiffs made claims against defendant arising from alleged contravention of Entertainment Industry Act 2013 (NSW) – where no evidence that foreign court would apply this Act as part of the lex causae – where defendants sought to strike out claims based on Act and sought summary dismissal of claims against defendants who were not parties to the relevant agreement – whether strong reasons established for refusing a stay PRACTICE AND PROCEDURE – application by defendants for summary dismissal or strike out – test to be applied – whether there was a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial – whether plaintiffs should be given opportunity to amend pleading STATUTORY INTERPRETATION – section 11 of the Entertainment Industry Act 2013 (NSW) – prohibition on performer representative demanding or receiving fees or other remuneration from a performer under an entertainment industry agreement in excess of capped amount – meaning of "performer", "performer representative" and "entertainment industry agreement" – whether "agreement" can be constituted by more than one contract – whether provision capable of applying where a performer representative located overseas demands or receives fees from a performer resident in the jurisdiction pursuant to an agreement governed by foreign law TORTS – breach of statutory duty – whether contravention of section 11 of the Entertainment Industry Act 2013 (NSW) is capable of giving rise to a private claim for damages for breach of statutory duty RESTITUTION – claim by plaintiffs for restitution of payments made by defendants – requirement for vitiating factor in order to establish entitlement to restitution – deficiency in pleading of claim Legislation Cited: Civil Procedure Act 2005 (NSW), s 67 Entertainment Industry Act 2013 (NSW), ss 3, 4, 5, 6, 9, 10, 11, 25, 39, 43 Limitation Act 1969 (NSW), s 14(1) Uniform Civil Procedure Rules 2005 (NSW), r 13.4 Entertainment Industry Regulation 2014 (NSW), reg 4 Entertainment Industry Regulation 2020 (NSW), reg 4 Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418; [1996] HCA 39 Australian Health & Nutrition Association ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 Bakewell v Anchorage Capital Master Offshore Ltd [2019] NSWCA 199 Barcelo v Electrolytic Zinc Company of Australasia Ltd (1932) 48 CLR 391; [1932] HCA 52 Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937 Bull v Attorney-General (NSW) (1913) 17 CLR 370; [1913] HCA 60 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242 Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Grannall v C Geo Kellaway and Sons Pty Ltd (1955) 93 CLR 36; [1955] HCA 5 Karpik v Carnival plc [2023] HCA 39 Leerdam v Noori (2009) 255 ALR 553; [2009] NSWCA 90 Martin v Western District of Australasian Coal & Shale Employees Federation (1934) 34 SR (NSW) 593 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628; [1970] HCA 46 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 Penthouse Publications Ltd v McWilliam [1991] NSWCA 222 Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 Preston v Star City Pty Ltd [1999] NSWSC 1273 Qantas v Rohrlach [2021] NSWSC 260 R v Porter (2004) 61 NSWLR 384; [2004] NSWCCA 353 Re Galtari Pty Ltd (in liq) [2018] NSWSC 917 Redland City Council v Kozik [2024] HCA 7 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; [1967] HCA 31 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 State of New South Wales v Williams [2014] NSWCA 177 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 Texts Cited: New South Wales Legislative Assembly, Second Reading Speech, Entertainment Industry Act 2013 (NSW) (Hansard), 14 August 2013 Category: Procedural rulings Parties: Angus & Julia Stone Pty Ltd (First Plaintiff) Angus John Stone (Second Plaintiff) Julia Natasha Stone (Third Plaintiff) A&J Touring Pty Ltd (Fourth Plaintiff) Angus Stone Pty Ltd (Fifth Plaintiff) Julia Stone Pty Ltd (Sixth Plaintiff) HNOE Limited (First Defendant) Manton Music Management Pty Ltd (Second Defendant) Timothy Manton (Third Defendant) Representation: Counsel: S J Philips (Plaintiffs) P W Flynn SC (Defendants)