NSWNSWSC

Fightvision -v- Tszyu [2000] NSWSC 899

[2000] NSWSC 899

Supreme Court of NSW|2000-09-01|Before: Hunter J, Bainton J, Marks J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2000-09-01

Before

Hunter J, Bainton J, Marks J

Source

Original judgment source is linked above.

Judgment (66 paragraphs)

[1]

The Applicant requests that these proceedings be listed before the Registrar for mention at the earliest convenience of the Industrial Relations Commission to enable the matter to proceed to final hearing expeditiously." 6 Section E of the summons provided for the statement of particulars of any amount claimed, to which the applicant noted "None applicable". 7 On 3 April 1997 Tszyu sought an order under Pt 31 in the Commercial Division proceedings to have a separate determination of the issue of liability. The application, on the face of it, was linked with the intention to prosecute the Commission proceedings once the contract question had been resolved in the Commercial Division proceedings. However attractive that contemplated procedure may have been, the history of that application leads to no surprise that it was rejected by Bainton J who, in his Honour's reasons for judgment, traced the history of that application as follows: "At a directions hearing on 2 February 1996 the parties informed the presiding Judge that they, or some of them, were contemplating seeking to have the question of liability determined as a separate issue pursuant to Part 31, r 2 of the Rules of the Supreme Court. That Judge gave leave to any party to take out a Notice of Motion to be filed and served by 4pm on 9 February seeking such an order. He stated that the consent of all parties (if forthcoming) to an order directing the determination of such a separate question would not necessarily lead to the making of such an order. No such application was made by any party either shortly after 2 February 1996, or at all until the seventh day of the present hearing.

[2]

[33]

Excluding the possibility of a further affidavit being prepared of the Applicant's translator in relation to the circumstances of translation of the agreement, the necessary evidence to enable the Commission in Court Session to hear and determine these proceedings is complete." 11 That evidence, I think, is significant, insofar as it strongly suggests that there was a close correlation of evidence constituting Tszyu's respective cases in the Commercial Division proceedings and the Commission proceedings. That is reinforced in the affidavit of Bronwyn Dwyer sworn 9 June 2000, the solicitor for the plaintiffs. Paragraph 6 of that affidavit is in the following terms: "6. On 2 April 1997 the Defendant filed a Summons in the Industrial Relations Commission of New South Wales seeking relief under Section 106 of the Industrial Relations Act. A copy of that Summons being plaint number IRC 1760 of 1997 is annexed and marked "C". The Affidavit filed on the Defendant's behalf in those proceedings was, apart from formal matters, identical to that filed and relied upon by the Defendant in the Commercial Division proceedings before Justice Bainton." 12 In this anti-suit injunction application it was contended by counsel on behalf of Tszyu that there would be additional evidence tendered in the Commission proceedings to include proof of the total pool of money available from each fight, for example from sponsorship: expert evidence of what a world champion fighter could expect from such a pool - the life span of such a boxer - the number of fights a year that such a boxer would undertake - the physical risks associated with such an occupation and evidence of the promoter's performance and services provided for moneys received, and some other matters of no particular consequence. Nevertheless, I think it is fairly obvious that the evidence to be adduced in the Commission proceedings would not differ markedly from that adduced in Tszyu's case in the Commercial Division proceedings. 13 The promoters moved in the Commission proceedings on 6 June 1997 to have those proceedings struck out or permanently stayed. On 17 June 1997 the Commission ordered that those proceedings be stayed pending judgment in the Commercial Division proceedings. 14 That judgment was delivered on 27 March 1998 in which Bainton J awarded damages against Tszyu in excess of $7,000,000 while dismissing the plaintiffs' action against the other defendants. Tszyu appealed from that judgment on 22 April 1998 and the plaintiffs cross-appealed seeking judgment against the defendants other than Tszyu. 15 Pending the outcome of that appeal, shortly after the judgment of Bainton J, Tszyu renewed his application for expedition before the Commission and the promoters renewed their application to strike out the Commission proceedings or, in the alternative, that they be stayed pending the outcome of the appeal from Bainton J's judgment. On those applications Marks J delivered his judgment on 15 June 1998. His brief reasoning and decision is to be found in the following passages from that judgment: "RELEVANT PRINCIPLES AND MATTERS FOR CONSIDERATION

[44]

109 The applications under Pt 31, r 2 and for a stay to allow the matter to proceed in the Commission were made late in the day, and on their face appear to us to have had little merit. It was accepted that whether or not they be granted was a matter for the trial Judge's discretion. No error in the exercise of that discretion has been demonstrated. The suggestion that this Court should now set aside any part of Bainton J's judgment so that the application in the Commission should proceed is rejected." 18 Of those reasons it is difficult to understand how it would not have been submitted to the Court of Appeal that Tszyu's application in the Commission proceedings would be prejudiced by judgment in the Commercial Division proceedings. The Court of Appeal however appears to have accepted that it would not and "that it would be a matter for the Commission". On the appeal, for reasons which were not exposed, Tszyu abandoned "any issue of unconscionability" and by its judgment the Court of Appeal gave judgment against Sky Channel in the amount of $7,310,445 as had been awarded against Tszyu. 19 Tszyu sought special leave to appeal to the High Court by notice dated 11 October 1999 which included the following ground: "2. (a) The Court of Appeal erred failing to hold that Bainton J wrongly refused the application made by Tszyu and Sky Channel Pty Limited that he make findings and orders which did not involve entry of a final judgment, and which would therefore permit Tszyu to exercise his statutory right under s 106 of the Industrial Relations Act (NSW) to apply to have set aside as void ab initio, or to vary, any contract arising from the alleged novation or the purported exercise by Fightvision Pty Limited of the option." 20 For reasons that have not been disclosed, that application was discontinued by notice dated 21 December 1999. Prior to that, on 24 November 1999, a bankruptcy notice was served on Tszyu by Fightvision in respect of a judgment debt which at that time amounted to $8,471,604.42. It was at about this time that Sky Channel settled its judgment debt with Fightvision and on 2 March 2000 Sky Channel obtained summary judgment in this Court against Tszyu in the sum of $3,875,000, presumably half of the judgment debt which had been satisfied by Sky Channel. That judgment is subject to appeal which is yet to be heard. 21 On 6 April 2000 a creditor's petition dated 4 April 2000 was served by Fightvision on Tszyu in respect of the judgment debt and interest, which amounted to $8,517,269.70 as at 13 December 1999, of which it was recorded that $7,750,000 had been paid, leaving a balance outstanding of $767,269.70. Presumably the amount of payment was that effected by Sky Channel. 22 On 8 May 2000 Tszyu caused the summons in the Commission proceedings to be relisted and pursuant to an order of the Commission that day he caused to be filed and served on Fightvision an amended summons of 24 May 2000. A week prior to that, the creditor's petition in the Federal Court was first listed for hearing and, on Tszyu's application, was adjourned to 30 May 2000. On 29 May 2000 Tszyu filed a notice of intention to oppose the petition which was then adjourned to 22 June 2000. Since then it has been further adjourned. Fightvision opposed the relief sought in the Commission proceedings on the following ground: " B. Summary of matters of fact and law in reply to the application .

[65]

(iv) the IRC proceedings, as presently constituted, have been brought for an improper purpose and are "seriously and unfairly prejudicial and damaging." 27 I think the real question for determination is whether the above described purpose of the amended summons is Tszyu's dominant purpose and, if so, whether it constitutes an abuse of process. 28 The oral submissions on behalf of the plaintiffs were wider than quoted above. It was submitted that the conduct of Tszyu amounted to an election to pursue his rights at law and at equity rather than to exhaust his statutory rights under s 106 of the Act. It was also argued that the basis upon which an unfair contract may be avoided or varied under s 106 of the Act differs in no material respect from the issues raised by Tszyu in his cross-claim in the Commercial Division proceedings alleging unconscientious conduct on the part of the promoters in securing the fight promotion agreement with Tszyu. 29 As a matter of practicality I have no doubt that Tszyu made a serious tactical error in failing to excite the provisions of s 106 in a more timely way. It was open to him to move in the Commission when the fight arrangement with the promoters gave rise to dispute. 30 The Act is not limited to relief in relation to contracts, it extends to unfair arrangements, so that the avenue was open to Tszyu, notwithstanding his denial of the existence or enforceability of the fight promotion agreement, to challenge that arrangement. It is also clear that he made a tactical mistake in not taking up the opportunity afforded to the parties at the directions hearing of 2 February 1996 to move for a determination of the separate issue on liability, acknowledging that even a consensual application would not necessarily have led to the making of an order. In fact Tszyu opposed the application for separate determination brought by notice of motion on behalf of the promoters in February 1996. It was not until mid way through the hearing of the Commercial Division proceedings that Tszyu moved for a Pt 31 order. It is difficult to disagree with the reasons for judgment of Bainton J refusing that application and rejecting the renewed application of Tszyu shortly thereafter. 31 Similarly, having regard to the manner in which the appeal was conducted on behalf of Tszyu, the Court of Appeal's conclusion in rejecting Tszyu's challenge to Bainton J's refusal to order a separate determination was, in my view, inescapable. 32 While it may not be apt to describe Tszyu's position as one of election, I think his conduct of the Commercial Division proceedings both at first instance and on appeal has had the effect of effectively exhausting his rights in relation to the contract as found to have been made with the promoters. In my view his position now is untenable in the Commission proceedings, notwithstanding my rejection of the plaintiffs' submission that the ambit of the issues capable of being raised under s 106 of the Act is encompassed within the unconscionability case of Tszyu in the Commercial Division proceedings. 33 I think it is evident from the definition of "unfair contract" in s 105 of the Act that there is no coincidence of issues in Tszyu's case of unconscionability in the Commercial Division proceedings and the case which he seeks to litigate in the Commission proceedings based on the contract as being "unfair, harsh or unconscionable or against the public interest..." See A & M Thompson Pty. Limited v Total Australia Limited [1980] 2 NSWLR 1. 34 However, the difficulty that I see in Tszyu's amended summons in the Commission proceedings lies in his quantification of the amount claimed in terms of the judgment debt awarded against him in the Commercial Division proceedings and, given that the fight promotion agreement has long since expired either by effluxion of time or by breach, the relief sought in the nature of avoidance or variation of that agreement is otiose: both aspects being the consequence of Tszyu's failure to act in a timely fashion to invoke the relief available to him under s 106 of Act. 35 In my view there is no warrant for ordering the payment of moneys claimed by Tszyu in the Commission proceedings. The power of the Commission to make such an order is to be found in s 106 (5) in the following terms: "106 (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case." 36 I am satisfied that the payment of those moneys as claimed by Tszyu would not be authorised by s 106 (5) as "the payment of money in connection with (the) contract declared wholly or partly void or varied...". In substance they are moneys payable by way of damages for breach of contract or for contribution in relation to damages awarded for inducement of breach of contract, as in the case of Sky Channel. Given that view, the purpose of the amended summons to defeat the effect of the judgments against Tszyu in the Commercial Division proceedings and to stave off the creditor's petition against him in the Federal Court should be seen as the dominant purpose of the Commission proceedings from which I think it follows that an injunction lies at the suit of the plaintiffs in the terms sought: See Williams v Spautz [1991-1992] 174 CLR 509 at 529 and Walton v Gardiner [1992-1993] 177 CLR 378 at 392. 37 Accordingly, I order that the defendant be restrained from taking any further steps directly or indirectly in proceedings number 1760 of 1997 in the Industrial Relations Commission of New South Wales in Court Session (other than to discontinue those proceedings). I further order that the defendant pay the plaintiffs' costs of the summons.

Fightvision -v- Tszyu [2000] NSWSC 899 - NSWSC 2000 case summary — Zoe