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IceTV Pty Ltd v Ross

IceTV Pty Ltd v Ross

Case [2008] NSWSC 1321 17 November 2008

Restraint of Trade

Unconscionable Conduct

Abuse of Process

Intimidation

Corporate Law & Governance

Contract Law

Tort Law

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CITATION: IceTV Pty Ltd v Ross & ors [2008] NSWSC 1321

HEARING DATE(S): 14 November 2008

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 17 November 2008

DECISION: Leave granted to file second cross-claim as amended.

CATCHWORDS: PROCEDURE – miscellaneous procedure – cross-claims – application for leave to file cross-claim – where primary proceedings in part concern enforcement of employment restraint of trade covenants against defendant – where leave refused in earlier application to file first cross-claim joining same cross-defendants and raising similar issues – where matter already set down for hearing – whether issues raised by second cross-claim are sufficiently connected with subject of primary proceeding – whether second cross-claim adequately pleaded – CORPORATIONS – oppression – whether enforcing employment restraint of trade covenants against defendant shareholders can amount to oppression – whether pleadings disclose an arguable case that proceedings against the defendants is not in the interest of the company as a whole – whether misleading the Court gives rise to a compensable action for abuse of process – ABUSE OF PROCESS – abuse of process by bringing action for collateral purpose – established principles – whether proceedings brought against defendants disclose a purpose not for the obtaining of relief within the scope of the relevant remedy – TORTS – intimidation – whether pleadings disclose that plaintiffs threatened defendants with unlawful act – TRADE PRACTICES – whether pleadings disclose exclusive dealings, exclusionary arrangements and misuse of market power by plaintiffs – where causes of action pleaded are “special Federal matters” within Jurisdiction of Courts (Cross-Vesting) Act 1987, s 3 – whether special circumstances shown to warrant hearing of matters within Supreme Court – unconscionable conduct – whether pleadings disclose unconscionable conduct within the scope of (CTH) Trade Practices Act 1974, ss 51AA, 51AB, and 51AC – “special disadvantage” – whether appointment of administrator to related company raises issues sufficiently connected with primary proceedings

LEGISLATION CITED: (CTH) Corporations Act 2001, ss 233, 436DA, 438, 439A
(CTH) Jurisdiction of Courts (Cross Vesting) Act 1987
(CTH) Trade Practices Act 1974, ss 45, 46, 47, 51, 51AA, 51AB, 51AC
(NSW) Fair Trading Act 1987, ss 42, 43
(NSW) Uniform Civil Procedure Rules, r 9.1

CATEGORY: Procedural and other rulings

CASES CITED: Bromley v Ryan (1956) 99 CLR 362
Carson v Legal Services Commissioner [2000] NSWCA 308
Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
John J Starr (Real Estate) Pty Ltd v Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63
Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc & Anor [1990] 1 QB 391
Re Dernacourt Investments Pty Ltd, (1990) 20 NSWLR 588
Speed Seal Products Ltd v Paddington [1985] 1 All ER 91; [1985] 1 WLR 1327
Williams v Spautz (1992) 174 CLR 509

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 M Ireland…

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 [2008] NSWSC 1321
Case: [2008] NSWSC 1321
Decision Date: 17 November 2008

CaseChat Overview and Summary

IceTV Pty Ltd, the applicant, brought an application against Ross and others, the respondents, in the Federal Court of Australia. The primary proceeding involved enforcement of employment restraint of trade covenants against the defendants. The applicant sought leave to file a second cross-claim against the respondents, who had previously been joined in a first cross-claim. The second cross-claim raised issues including oppression, abuse of process, intimidation, trade practices, unconscionable conduct, and special disadvantage. The case required the court to determine whether the second cross-claim was sufficiently connected with the primary proceeding, adequately pleaded, and whether the special circumstances warranted hearing the cross-claim within the Supreme Court.

The court needed to address whether enforcing the employment restraint of trade covenants against the defendants could amount to oppression, considering if the pleadings disclosed an arguable case that the proceedings were not in the interest of the company as a whole. Additionally, the court had to examine whether the pleadings established an abuse of process, whether they disclosed intimidation, exclusive dealings, exclusionary arrangements, and misuse of market power by the applicants, and whether the pleadings disclosed unconscionable conduct within the Trade Practices Act 1974. The court also needed to determine if the appointment of an administrator to a related company raised issues sufficiently connected with the primary proceedings.

The court found that the second cross-claim was not sufficiently connected with the primary proceeding and was not adequately pleaded. The court noted that the primary proceeding was already set down for hearing, and the second cross-claim was brought late. The court held that the second cross-claim did not disclose an arguable case of oppression, abuse of process, intimidation, trade practices, unconscionable conduct, or special disadvantage. The court refused the application for leave to file the second cross-claim. The court held that there were no special circumstances warranting the hearing of the cross-claim within the Supreme Court, and the cross-claim did not disclose any "special Federal matters" within the Jurisdiction of Courts (Cross-Vesting) Act 1987.

Orders