IceTV v Duncan Ross - [2011] NSWSC 1300

Supreme Court

New South Wales

Medium Neutral Citation: IceTV v Duncan Ross & Ors [2011] NSWSC 1300
Hearing dates: Thursday, 27 October 2011
Decision date: 27 October 2011
Jurisdiction: Equity Division
Before: Brereton J
Decision:
Judgment debt be paid by instalments.
Notice to produce set aside.

Catchwords: PRACTICE AND PROCEDURE - Instalment orders - defendants seek judgment debt be paid in instalments - discussion of law as to instalment orders - such orders ought not be made where judgment debtor's means sufficient to pay debt in full immediately - such orders ought not be made if would be futile due to impecuniosity of debtor - time for payment ought not be unreasonable - instalment order must result in net reduction of judgment debt, bearing in mind interest accrues on such debts - defendants means do not enable them to immediately pay judgment debt - legitimate public interest in allowing defendants to continue performing work - order made enables net reduction of judgment debt.
PRACTICE AND PROCEDURE - Notices to produce - plaintiff seeks to have defendants' notice set aside - notice pertains to plaintiff's application for strike out or summary dismissal of defendants' cross-claim on basis of legal untenability of cross-claim - Court assumes factual allegations can be proved in such applications - defendants' contention two companies "one and the same" legally impossible - notice to produce set aside.
Legislation Cited: (NSW) Civil Procedure Act, 2005, s 107
(NSW) Conveyancing Act, 1919, s 37A
(NSW) Uniform Civil Procedure Rules, r 21, r 37
Cases Cited: Cahill v Howe [1986] VR 63
Hellier Capital Pty Ltd v Albarran [2009] NSWSC 403
IceTV Pty Ltd v Ross [2009] NSWSC 980
Leondaris v KGB Design & Construction Pty Ltd [1998] FCA 1354
Scottish Co-Operative Wholesale Society Ltd v Meyer and Another [1958] 3 All ER 66
Category: Procedural and other rulings
Parties: IceTV Pty Ltd (plaintiff)
Duncan Ross (first defendant)
Dr Peter Vogel (second defendant)
Vogel Ross Pty Ltd (third defendant)
Representation: Counsel:
Mr J.M. Ireland QC with Mr J.S. Cooke (plaintiff)
Mr D Ross and Dr P Vogel appeared in person for the defendants
Solicitors:
Argyle Lawyers (plaintiff)

File Number(s): 2007/254759

Judgment (ex tempore)

HIS HONOUR: On 18 September 2009, Rein J gave judgment for the plaintiff IceTV Pty Ltd against the defendants Mr Duncan Ross, Dr Peter Vogel and their company Vogel Ross Pty Ltd ('Vogel Ross'), for an amount of $35,000 principal and $8,488 interest, and for the cross-defendant on the first cross-claim [ IceTV Pty Ltd v Ross [2009] NSWSC 980]. An order was also made that the defendants pay the plaintiff's costs. Evidence has been filed which indicates that those costs may be in excess of $200,000, but it would seem that no assessment has taken place and there is not yet any quantified enforceable costs order.

By notice of motion filed 27 September 2011, the defendants seek an order that the judgment be paid by instalments of a total of $2,130 per month, the first payment…

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 v Duncan Ross

Details

AGLC: IceTV v Duncan Ross [2011] NSWSC 1300
Case: [2011] NSWSC 1300
Decision Date: 27 October 2011

CaseChat Overview and Summary

The case of IceTV v Duncan Ross involved a dispute between the plaintiff, IceTV, and the defendants, Duncan Ross and other associated entities, regarding the enforcement of a judgment debt. The plaintiff sought an instalment order for the payment of the debt, while the defendants argued against this and sought to set aside a notice to produce documents related to the plaintiff's application to strike out or dismiss their cross-claim. The Federal Court of Australia was tasked with deciding these matters.

The court needed to determine whether the defendants' means were sufficient to allow for immediate payment of the judgment debt and if an instalment order would be futile due to their financial situation. The court also had to consider whether any proposed payment schedule would be unreasonable and whether the instalment order would result in a net reduction of the judgment debt, taking into account the accruing interest. Additionally, the court was asked to decide whether setting aside the notice to produce was appropriate, given the defendants' argument that the assertion of two companies being "one and the same" was legally impossible.

In delivering its judgment, the court found that the defendants' financial means did not allow for immediate payment of the judgment debt, and that there was a legitimate public interest in allowing the defendants to continue their work. Consequently, the court made an instalment order, which resulted in a net reduction of the judgment debt. The court also set aside the notice to produce, as the defendants' contention that the two companies being "one and the same" was legally impossible did not align with the court's assumptions about the factual allegations in the plaintiff's applications to strike out or dismiss the cross-claim.

The court ordered that the defendants pay the judgment debt in instalments, as per the terms outlined in the judgment. Additionally, the notice to produce was set aside, and the defendants were no longer required to provide the documents requested.

Orders