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IceTV Pty Ltd v Ross

IceTV Pty Ltd v Ross

Case [2007] NSWSC 1232 28 September 2007

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CITATION: IceTV Pty Ltd v Ross & Ors [2007] NSWSC 1232

HEARING DATE(S): 28 September 2007

JURISDICTION: Equity Division
Duty List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 28 September 2007

DECISION: Injunction discharged. Security for costs ordered.

CATCHWORDS: INJUNCTIONS – interlocutory injunction – varying and setting aside – where defendant shows that undertaking as to damages is worthless and such undertaking was material consideration on balance of convenience when injunction granted. - SECURITY FOR COSTS – corporate impecuniosity – discretionary considerations – delay.

CASES CITED: Cachia v Hanes (1994) 179 CLR 403
IceTV v Duncan Ross & Ors (2007) NSWSC 635
KDL Building Pty Ltd v Mount [2006] NSWSC 474

PARTIES: IceTV Pty Limited (plaintiff)
Duncan Ross (first defendant)
Peter Vogel (second defendant)
Vogel Ross Pty Limited (third defendant)

FILE NUMBER(S): SC 2577/07

COUNSEL: Mr S Habib (plaintiff)
Mr S Ross (in person) (first defendant)
Mr P Vogel (in person) (second defendant)

SOLICITORS: The Argyle Partnership (plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday, 28 September 2007

2577/07 IceTV Pty Ltd v Ross & ors

JUDGMENT (ex tempore)

1 HIS HONOUR: On 3 July 2007, following an interlocutory hearing which had taken place in the duty list on 28 May 2007, I made the following orders [IceTV v Duncan Ross & Ors [2007] NSWSC 635]

1.1 until 4 October 2007, carrying on or otherwise being engaged or involved in any business similar to or competitive with the business of the plaintiff carried on during the twelve month period prior to 4 October 2006, including the development and/or pursuit of the commercial opportunity of media content provision to set-top-boxes, Personal Video Recorders or similar devices;

1.2 until 4 October 2007, canvassing or soliciting the custom of any person who had entered into discussions or negotiations with the plaintiff during the twelve month period prior to 4 October 2006, including Transact, CEOS, Mobilesoft, Media Review International, and Yahoo!7;

(a) plans or strategies relating to the marketing of product and services developed by IceTV;

(b) the design of IceTV’s EPG and the method of how it works;

(c) the strategies and methods used to deliver content through the EPG and PIMP;

(d) the state of dealings between IceTV and customers, set-top-box manufacturers, PVR manufacturers, Media Centre software manufacturers, media content providers, TV networks, potential investors and potential joint venture partners;

(e) IceTV’s pricing and costing information, including the price at which IceTV was seeking to be paid for content provision 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 [2007] NSWSC 1232
Case: [2007] NSWSC 1232
Decision Date: 28 September 2007

CaseChat Overview and Summary

The case of IceTV Pty Ltd v Ross involved a dispute between the plaintiff, a company in the digital television industry, and the defendant, a former employee. The plaintiff sought an interlocutory injunction to prevent the defendant from disclosing confidential information, which was granted initially. The defendant later applied to vary and set aside the injunction, arguing that an undertaking as to damages provided by the defendant was worthless and that this was a material factor when the balance of convenience was assessed. The court also had to consider the defendant's application for security for costs, which was opposed by the plaintiff on the basis of the defendant's corporate impecuniosity and delay in bringing the application.

The legal issues before the court were whether the worthless undertaking as to damages was sufficient grounds to vary and set aside the interlocutory injunction and whether the defendant's application for security for costs should be granted. The court needed to consider the principles governing the grant and variation of interlocutory injunctions, particularly the balance of convenience, and the criteria for granting security for costs, including the concept of corporate impecuniosity.

In its decision, the court found that the worthless undertaking as to damages was indeed a significant factor that undermined the basis on which the injunction was granted. The court held that the balance of convenience had shifted in favour of setting aside the injunction, given that the defendant's ability to pay any potential damages was no longer a reliable consideration. Regarding the application for security for costs, the court noted that while corporate impecuniosity is a relevant consideration, the defendant's delay in making the application was a significant factor that weighed against granting security for costs.

The court ultimately set aside the interlocutory injunction and refused the defendant's application for security for costs. This decision underscores the importance of the reliability of undertakings as to damages in interlocutory injunctions and the weight given to delay in applications for security for costs.

Orders