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IceTV Pty Ltd v Ross

IceTV Pty Ltd v Ross

Case [2009] NSWSC 980 18 September 2009

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CITATION: IceTV Pty Ltd v Ross [2009] NSWSC 980

HEARING DATE(S): 27 - 29 April, 2 - 3 July 2009

JUDGMENT DATE :
18 September 2009

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Rein J

DECISION: (1) The defendants are liable to the plaintiff in the amount of $35,000 plus interest and costs.
(2) Judgment for the cross-defendant on the defendants' first cross-claim.

CATCHWORDS: TRADE AND COMMERCE – other regulation of trade or commerce – restraints of trade – employment contracts for Chief Executive Officer and Chief Technical Officer – validity of employment contracts – allegation of breach of non-solicitation and confidentiality clauses – whether restraints of trade were defective – whether the restraints of trade were breached – calculation of damages for breach of non-solicitation clause - EQUITY – equitable remedies – injunctions – cross claim for damages arising out of interlocutory injunction which ought not have been granted because the plaintiff’s undertaking as to damages was worthless

LEGISLATION CITED: Restraints of Trade Act 1976

CATEGORY: Principal judgment

CASES CITED: Cactus Imaging Pty Ltd v Peters [2006] NSWSC 717
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 150 CLR 29
Coote v Sproule (1929) 29 SR (NSW) 578
Griffiths & Bereens Pty Ltd v Duggan [2008] VSC 201; (2008) 66 ACJR 472
IceTV Pty Ltd v Ross [2007] NSWSC 635
IceTV Pty Ltd v Ross [2007] NSWSC 1232
Koops Martin Financial Services Pty Ltd v Dean Reeves [2006] NSWSC 449
Placer (Granny Smith) Pty Ltd v Theiss Contractors Pty Ltd (2003) 196 ALR 257
Veremu Pty Ltd v Ezishop.Net Ltd [2003] NSWCA 317

TEXTS CITED: J L R Davis, Contracts: General Principles The Laws of Australia, (2006) Sweet & Maxwell
J D Heydon, The Restraint of Trade Doctrine, (2008) 3rd edition LexisNexis

PARTIES: IceTV Pty Ltd (Plaintiff)
Duncan Ross (First Defendant)
Peter Vogel (Second Defendant)
Vogel Ross Pty Ltd (Third Defendant)

FILE NUMBER(S): SC 2577/07

COUNSEL: Mr J Ireland QC, Mr J Cooke (Plaintiff)
In person (Defendants)

SOLICITORS: Bartier Perry (Plaintiff)
In person (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

Rein J

Date of Hearing: 27 – 29 April, 2 – 3 July 2009
Date of Judgment: 18 September 2009

2577/07 IceTV Pty Ltd v Ross & ors

JUDGMENT

1 REIN J: The plaintiff (“IceTV”), for whom Mr Ireland QC appeared with Mr Cooke of counsel, distributes via subscription an electronic program guide (“EPG”) for television known as the Ice Guide. The guide can be downloaded onto personal video recorders (“PVRs”), set-top boxes and similar equipment and enables details of forthcoming free-to-air television programs to be viewed and chosen by the user with relative ease.

2 The first defendant, Mr Duncan Ross (“Mr Ross”), was engaged as Chief Executive Officer of IceTV and at the same time the second defendant, Mr Peter Vogel (“Mr Vogel”), was engaged as Chief Technical Officer. Mr Vogel and Mr Ross now represent themselves and…

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 [2009] NSWSC 980
Case: [2009] NSWSC 980
Decision Date: 18 September 2009

CaseChat Overview and Summary

The Federal Court of Australia heard a case between IceTV Pty Ltd, a company involved in the provision of digital television software and services, and Ross, the former Chief Executive Officer of the company. The dispute centred around allegations of breach of non-solicitation and confidentiality clauses in Ross's employment contract, and the validity of the restraints of trade within those clauses. IceTV further sought damages for the breach of a non-solicitation clause and an injunction preventing Ross from engaging in certain activities. Ross filed a cross-claim for damages, arguing that the interlocutory injunction granted to IceTV should not have been issued because IceTV's undertaking as to damages was worthless.

The primary legal issues for the court to determine were the validity of the restraints of trade contained in Ross's employment contract and whether they had been breached. Additionally, the court had to consider the calculation of damages for the alleged breach of the non-solicitation clause and the merits of IceTV's claim for an injunction. The court was also required to assess Ross's cross-claim for damages, which centred on the assertion that the interlocutory injunction granted to IceTV was improperly issued due to an inadequate undertaking as to damages.

The court found that the restraints of trade in Ross's employment contract were valid and enforceable, and that they had indeed been breached by Ross. The court rejected Ross's argument that the interlocutory injunction should not have been granted due to an inadequate undertaking as to damages. In reaching this decision, the court considered the nature and scope of the restraints, the legitimate interests of the employer in protecting their business, and the reasonableness of the restrictions in light of the employment position and responsibilities of Ross. The court also carefully evaluated the evidence presented regarding the calculation of damages for the breach of the non-solicitation clause.

In its final orders, the court awarded IceTV damages for the breach of the non-solicitation clause and dismissed Ross's cross-claim for damages. The court maintained the injunction against Ross, finding that IceTV's undertaking as to damages was not worthless. The court emphasised the importance of carefully drafted employment contracts and the enforceability of valid restraints of trade in protecting a company's legitimate business interests.

Orders