IceTV Pty Ltd v Duncan Ross
[2011] NSWSC 1072
•29 August 2011
Supreme Court
New South Wales
Medium Neutral Citation: IceTV Pty Ltd v Duncan Ross & Ors [2011] NSWSC 1072 Hearing dates: Monday, 29 August 2011 Decision date: 29 August 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Proceedings adjourned.
Orders of Rein J stayed.
Security and accrued interest be paid out to plaintiff.
Catchwords: SECURITY FOR COSTS - Plaintiff gives security of costs - plaintiff's claim successful - plaintiff seeks release of funds - defendants' oppose release on ground that cross-claim pending - security provided for purpose of plaintiff's claim - not releasing funds would appropriate them to a purpose irrelevant to basis for which order for payment made - funds released. Category: Procedural and other rulings Parties: IceTV Pty Ltd (plaintiff)
Duncan Ross (first defendant)
Peter Vogel (second defendant)
Vogel Ross Pty Ltd (third defendant)Representation: Counsel:
Mr J. M. Ireland QC (plaintiff)
Mr P. Vogel (defendants in person)
Solicitors:
Bartier Perry (plaintiff)
File Number(s): 2007/254759
Judgment (ex tempore)
HIS HONOUR: On 28 September 2007, on the defendants' application, I made an order that the plaintiff give security for costs in a form acceptable to the Registrar in the sum of $75,000 within 14 days, and that in default the proceedings be stayed. On 15 October 2007, pursuant to that order, the plaintiff paid $75,000 into Court.
On 18 September 2009, Rein J, who heard the substantive proceedings during April 2009, gave judgment for the plaintiff on its claim for $35,000 plus interest and costs, and gave judgment for the cross-defendant on the defendants' first-cross claim [ IceTV Pty Ltd v Ross [2009] NSWSC 980]. The defendants appealed unsuccessfully to the Court of Appeal [ Ross and Anor v IceTV [2010] NSWCA 272], and unsuccessfully sought special leave to appeal to the High Court. There remains on foot a second cross-claim, in which the plaintiff is one of the cross-defendants.
By notice of motion filed on 22 August 2011, the plaintiff seeks an order that the security of $75,000 and accrued interest be paid out to it. By motion filed on 23 August, 2011, the defendants seek a stay of execution of Rein J's orders and, in effect in opposition to the plaintiff's motion, that the security not be released until disposal of the second cross-claim.
So far as the application for a stay is concerned, the plaintiff says that it needs some short time to adduce some evidence in opposition to that application. As the motion was filed only on 23 August, I think it reasonable to allow the plaintiff that opportunity. The plaintiff does not oppose - although it does not consent to - an interim stay pending that adjournment. Accordingly, I will adjourn the hearing of the claims for relief in paragraphs 1 and 2 of the defendants' motion to a date to be arranged with the parties at the conclusion of this judgment and direct that the plaintiffs serve any evidence on which they wish to rely in that respect by this Friday, 3 September.
So far as the application for payment out is concerned, the moneys in court were paid in by the plaintiff as security for costs. The outcome of the proceedings, except on the outstanding second cross-claim, has been favourable to the plaintiff, and there is a costs order in the plaintiff's favour. Except in the most unusual circumstances, the Court does not make orders for security for costs against defendants or cross defendants.
The purpose for which the order for security for $75,000 was made has now been completed, and I see no good reason why that sum should not be returned to the plaintiff. I appreciate that there is still potential for the defendants, on their second cross-claim, to recover a judgment against the plaintiff, but this sum was a security for costs of the plaintiff's claim, and it would be inappropriate now to appropriate it to some other purpose not relevant to the basis on which the order for payment in was made.
My orders are as follows:
(1) Make Order 1 in the plaintiff's motion filed on 22 August 2011.
(2) Adjourn the defendant's motion to 9 September 2011 at 10am before me in the Duty Judge list.
(3) Direct that the plaintiff serve any further evidence on which it proposes to rely by Tuesday, 6 September 2011.
(4) Order that until 9 September 2011 execution of the orders made by Rein J on 18 September 2009 be stayed.
(5) Costs of the plaintiff's motion of 22 August 2011 are reserved to 9 September.
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Decision last updated: 16 September 2011
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