IceTV Pty Ltd v Ross - [2011] NSWSC 1211

Supreme Court

New South Wales

Medium Neutral Citation: IceTV Pty Ltd v Ross & Ors [2011] NSWSC 1211
Hearing dates: Thursday, 29 September 2011
Decision date: 29 September 2011
Jurisdiction: Equity Division - Duty List
Before: Brereton J
Decision:
Motion dismissed with costs.
Limited stay granted.

Catchwords: PRACTICE AND PROCEDURE - Application for stay of execution of judgment pending determination of appeal - right of plaintiff to benefit of judgment upheld twice at successive appellate levels - analysis of prospects of success at appeal - prospects low given appeal on a discretionary judgment on a matter of practice and procedure - application dismissed - limited stay granted so Court of Appeal can consider application for stay pending application leave to appeal.
Cases Cited: Alexander and Others v Cambridge Credit Corporation Ltd (Receivers Appointed) and Another (1985) 2 NSWLR 685
IceTV v Ross & Ors [2011] NSWSC 1093
Re Middle Harbour Investments Ltd (in Liq) (Court of Appeal, 15 December 1976, unreported)
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 JS Cooke (plaintiff)
Mr P Vogel (defendants, in person)
Solicitors:
Bartier Perry (plaintiff)

File Number(s): 2004/254759

Judgment (ex tempore)

HIS HONOUR: On 9 September 2011 I dismissed the defendants' motion for a stay of execution of the orders made by Rein J on 18 September 2009 [ IceTV v Ross & Ors [2011] NSWSC 1093]. By motion filed on 19 September 2011, the defendants make a further application for a stay, pending the determination of an appeal that they propose to bring against that decision, having on 14 September 2011 filed a Notice of Intention to Appeal.

My refusal of a stay is properly characterised as an interlocutory decision. Leave to appeal from that decision would be required. No application for leave to appeal has yet been made.

On an application for a stay pending an appeal, the considerations and approach of the Court is well established: see Alexander and Others v Cambridge Credit Corporation Ltd (Receivers Appointed) and Another (1985) 2 NSWLR 685, where the Court of Appeal outlined the relevant principles as follows (at 694-695):

It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour.

There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties ... The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears ... The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading IceTV Pty Ltd v Ross

Details

AGLC: IceTV Pty Ltd v Ross [2011] NSWSC 1211
Case: [2011] NSWSC 1211
Decision Date: 29 September 2011

CaseChat Overview and Summary

In the Federal Court of Australia, the case of IceTV Pty Ltd versus Ross was heard. IceTV sought to stay the execution of a judgment against it, pending the determination of an appeal. The judgment in question was upheld at two appellate levels, and the primary issue for the court was whether the plaintiff was entitled to the benefit of this decision, pending the outcome of the appeal. The court also had to determine whether it was appropriate to grant a stay of execution of the judgment, given the plaintiff's limited prospects of success on appeal.

The court examined the plaintiff's right to benefit from the judgment being upheld at two appellate levels and weighed this against the prospects of success on the appeal. The appeal was on a discretionary judgment that related to a matter of practice and procedure. The court found that the prospects of success on appeal were low, given the discretionary nature of the judgment and the court's previous decisions. However, the court did grant a limited stay so that the Court of Appeal could consider an application for a stay pending the application for leave to appeal.

The court dismissed the application for a stay of execution of the judgment, but granted a limited stay to allow the Court of Appeal to consider an application for a stay pending the application for leave to appeal. The court found that the plaintiff was entitled to the benefit of the judgment being upheld at two appellate levels, but the prospects of success on appeal were low. The court also considered the effect of the stay on the defendant and the public interest in the timely resolution of disputes. Ultimately, the court found that a limited stay was appropriate in the circumstances.

Orders