WIN Corporation Pty Ltd -v- Nine Network Australia Pty Limited [2016] NSWSC 523

WIN Corporation Pty Ltd -v- Nine Network Australia Pty Limited [2016] NSWSC 523

Clause 2.1, read in the legislative framework and factual context, referred only to free-to-air terrestrial broadcasting on and in the licence areas covered by the WIN Stations under BSA licences. Internet live streaming was not "broadcasting" within the meaning of the PSA, and the exclusive licence obtained by WIN was only an exclusive licence to broadcast free-to-air in those licence areas. A term preventing Nine from live streaming was not necessary to give business efficacy to the PSA and would contradict the express bargain as construed. Nine therefore did not breach the PSA and WIN was not entitled to an injunction.

Jurisdiction
Australia
Judgment Date
28 April 2016
Procedural Posture
Equity Commercial List; Contract Construction and Final Injunction Proceedings / Principal Judgment After Hearing
Outcome
Proceedings dismissed
Legal Topics
['construction of Program Supply Agreement' 'meaning of "broadcast"' 'internet Live Streaming' 'exclusive Licence' 'implied Terms' 'final Injunction']
['contract Law' 'equity'] ['construction of Program Supply Agreement' 'meaning of "broadcast"' 'internet Live Streaming' 'exclusive Licence' 'implied Terms' 'final Injunction']

Case Brief

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Procedural Posture

Equity Commercial List; Contract Construction and Final Injunction Proceedings / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether internet live streaming by Nine into the licence areas covered by the WIN Stations was "broadcasting" within the meaning of clause 2.1 of the Program Supply Agreement.' 'Whether the Program Supply Agreement contained an implied term preventing Nine from internet live streaming into the WIN licence areas.' 'Whether WIN should receive a final injunction restraining Nine from live streaming into the WIN licence areas.']

Ratio Decidendi

Clause 2.1, read in the legislative framework and factual context, referred only to free-to-air terrestrial broadcasting on and in the licence areas covered by the WIN Stations under BSA licences. Internet live streaming was not "broadcasting" within the meaning of the PSA, and the exclusive licence obtained by WIN was only an exclusive licence to broadcast free-to-air in those licence areas. A term preventing Nine from live streaming was not necessary to give business efficacy to the PSA and would contradict the express bargain as construed. Nine therefore did not breach the PSA and WIN was not entitled to an injunction.

Court Disposition

Proceedings dismissed

Orders

  • ['The proceedings are dismissed.' 'The exhibits are to be returned.']