Sky Channel Pty Limited v Austar Entertainment Pty Limited & Thoroughvision Pty Limited [2005] NSWSC 851

New South Wales Supreme Court

CITATION : Sky Channel Pty Limited v Austar Entertainment Pty Limited & Thoroughvision Pty Limited [2005] NSWSC 851

HEARING DATE(S) : 12/08/05

JUDGMENT DATE : 25 August 2005

Equity Division JURISDICTION : Commercial List

JUDGMENT OF : Einstein J

DECISION : Defendants to pay plaintiff's costs

CATCHWORDS : Costs - Interlocutory hearing

Sky Channel Pty Limited (Plaintiff) PARTIES : Austar Entertainment Pty Limited (First Defendant) Thoroughvision Pty Limited (Second Defendant)

FILE NUMBER(S) : SC 50122/05

Mr R Dick (Plaintiff) COUNSEL : Mr M White (First Defendant) Mr S Rushton SC (Second Defendant)

Freehills (Plaintiff) SOLICITORS : Tress Cox (First Defendant) Clayton Utz (Second Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Einstein J

Thursday 25 August 2005

50122/05 Sky Channel Pty Limited v Austar Entertainment Pty Limited & Thoroughvision Pty Limited JUDGMENT Decision in respect of costs of the interlocutory injunctive application 1 The judgment on the application for interlocutory injunctive relief was handed down on 11 August 2005 [2005] NSWSC 815. 2 Argument took place with respect to costs on 12 August 2005. The decision was reserved. 3 There is a wide discretion in the Court in terms of the appropriate costs orders to be made in any given circumstance. 4 The background to the commencement of proceedings was adequately outlined in the judgment. By far and away the most significant issues litigated during the interlocutory hearing concerned the balance of convenience: cf judgment (at [39] and [40]). Those are not matters which are likely to loom large in the matters to be litigated in the final hearing. 5 For the reasons given in the judgment Austar determined to take a calculated risk that it would be necessary to defend its position in interlocutory proceedings. The same was the case insofar as TVN was concerned. 6 The principled exercise of the Court's discretion is to order that the defendants pay the plaintiff's costs of the motion for injunctive relief. Order 7 The Court orders that the defendants pay the plaintiff's costs of the motion for interlocutory relief.