FEDERAL COURT OF AUSTRALIA

Asia Television Limited v Yau’s Entertainment Pty Limited (ACN 003 584 183) [2005] FCA 1881

PRACTICE AND PROCEDURE – security for costs – where costs are awarded but there is a substantial delay in the provision of a bill of costs – order made returning security for costs

ASIA TELEVISION LIMITED AND ATV ENTERPRISES LIMITED v YAU'S ENTERTAINMENT PTY LIMITED (ACN 003 584 183) AND YAU'S ENTERTAINMENT PTY LIMITED (ACN 003 584 183), ASIA TELEVISION LIMITED, ATV ENTERPRISES LIMITED AND CHINATOWN ENTERTAINMENT (AUSTRALIA) PTY LTD (ACN 073 003 675)

NSD 343 OF 1999

GYLES J

14 DECEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

The amount of $20,000 in the Litigants’ Fund pursuant to order 3 made on 15 June 1999 be returned to the solicitor for the cross-claimant, Yau's Entertainment Pty Limited, after the expiration of seven days from today’s date.

THE COURT DIRECTS THAT:

Notice of the above order be given by the Registry to the solicitor on the record for the second cross-respondent, Chinatown Entertainment (Australia) Pty Ltd.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 15 June 1999 an order was made that the cross-claimant provide AUD $20,000 security for the costs of the second cross-respondent defending the cross-claim.  An amount was paid into Court on 2 July 1999 and paid into the Litigants Fund on 5 July 1999, $20,000 of the total sum being appropriated towards satisfaction of that order.

2                     On 30 June 2000, the cross-claimant was ordered to pay the second cross-respondent's costs of the cross-claim.  That is now more than five years ago.  The Deputy District Registrar of the Court has endeavoured to follow this matter up since July of this year, there being no evidence on the file of any proceeding for taxation.  There has been correspondence with the solicitors concerned and with Mr Wing Cheung, who was a Director of Chinatown Entertainment (Australia) Pty Ltd. There has been no effective substantive reply on behalf of the second cross-respondent.  The solicitor for the cross-claimant appears before me today indicating that he had correspondence with the solicitor on the record for the second cross-respondent in August 2005.

3                     The solicitors for the second cross-respondent took the position that they sought consent to have the funds released to them in payment of costs.  The response was that a copy of the bill of costs should be provided.  That has not been done.

4                     I am satisfied that the solicitors for the second cross-respondent were notified of this hearing and do not appear.  It is unsatisfactory that a matter of this kind be left outstanding for such a period of time. 

5                     I order that the amount of $20,000 in the Litigants’ Fund pursuant to order 3 made on 15 June 1999 be returned to the solicitor for the cross-claimant, Yau's Entertainment Pty Limited, after the expiration of seven days from today’s date. I direct that notice of the above order be given by the Registry to the solicitor on the record for the second cross-respondent, Chinatown Entertainment (Australia) Pty Ltd.

Associate:

Dated:              22 December 2005