Bova v Avati [2009] NSWSC 921

New South Wales Supreme Court

CITATION : Bova v Avati [2009] NSWSC 921

HEARING DATE(S) : 18,19, 20, 21, November 2008, 23, 24, 25, 26, 27 March, 18 May and 30 July 2009

JUDGMENT DATE : 4 September 2009

JURISDICTION : Equity Division

JUDGMENT OF : Ward J

DECISION : Judgment for the Defendant

CATCHWORDS : PARTNERSHIP – generally – whether plaintiff and defendant were engaged in partnership for the production, promotion and performance of comedy act – whether national comedy tour was an opportunity of the partnership, for which the defendant was liable to account – whether copyright in artistic work and sound recording were property of partnership for which the defendant was liable to account – whether defendant had breached fiduciary duty by use of opportunity and/or copyright – held that partnership between the plaintiff and defendant very limited in scope and did not extend to opportunity or copyright - PROCEDURE – discovery and interrogatories – discovery and inspection of documents – whether defendant had complied with discovery obligations – whether documents which the defendant would have been likely to obtain upon request were discoverable, absent an enforceable legal right to obtain them – held that such documents not discoverable – no evidence that defendant had failed to comply with discovery obligations.

Civil Procedure Act 2005 LEGISLATION CITED : Copyright Act 1968 (Cth) Partnership Act 1982 (NSW) Supreme Court Rules

CATEGORY : Principal judgment

Absolute Analogue Inc v Sundance Resources Limited [2008] WASC 259 Adam v Newbigging (1888) 13 App Cas 308 Aetna Pacific Securities Limited v Hongkong Bank of Australia Limited (unreported, 29 April 1993) BSP Technical Services Pty Limited v AMEV-UDC Finance Limited (unreported, Hodgson J, 25 March 1985) Canadian Aero Service Limited v O'Malley [1974] SCR 592, (1973) 40 DLR (3RD) 371 Canny Gabriel Castle Jackson Advertising Pty Limited v Volume Sales (Finance) (1974) 131 CLR 321 Cribb v Korn (1911) 12 CLR 205 Douglas-Hill v Parke Davis Pty Limited (1990) 54 SASR 346 Expectation Pty Limited v PRD Realty Pty Limited (2004) 140 FCR 17 Hadid v Redpath (2001) 35 MVR 152 Harvey v Harvey (1970) 120 CLR 529 Hybernia Management & Development Co v Newfoundland Steel Inc (1996) NFLD & PEIR 90, 107 Industrial Equity Limited v Lyons (NSWSC unreported, Cohen J, 15 October 1991) Lawfund Australia Pty Limited v Lawfund Leasing Pty Limited (2008) 66 ACSR 1 Lonrho Limited v Shell Petroleum Co Limited [1980] 1 WLR 627 Macpherson v Macpherson (unreported, Supreme Court of Victoria Full Court, 30 November 1990) Midalco v Simpson (unreported, Supreme Court of Western Australia Full Court, 5 June 1987) CASES CITED : Monie v Commonwealth of Australia (2005) 63 NSWLR 729 Mount Lawley Pty Limited v Western Australian Planning Commission (unreported, WASC, 19 March 1999) NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 Neilson v Mossend Iron Co (1886) 11 AC 298 Palmdale Insurance Limited (in liq) v L Grollo & Co Pty Ltd [1987] VR 113 Phillips-Higgins v Harper [1954] 1 QB 411 Roux v ABC [1992] 2 VR 577 Russell v Russell (1880) 14 Ch D 471 Sabre Corp v Russ Kalvin's Hair Care (1993) 46 FCR 428 Sogelease Australia Limited v Griffin [2003] NSWSC 178 Spedley Securities Limited (in liq) v Bank of New Zealand (1992) 6 ACSR 571 SPI Spirits (Cyprus) Limited v Diageo Australia Limited (No 2) (2006) 155 FCR 150 Taylor v Santos Limited (1998) 71 SASR 434 Theodore v Australian Postal Commission [1988] VR 272 United Builders Pty Limited v Mutual Acceptance Limited (1980) 144 CLR 673 United Dominion Corporation Limited v Brian (1985) 157 CLR 1 Watson v Foxman (1995) 49 NSWLR 315 Weiner v Harris [1910] 1 KB 285