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

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

Because IceTV's financial deficiency showed that its undertaking as to damages was not valuable, and that undertaking had been material to the balance of convenience when the injunctions were granted, the interlocutory injunctions should be discharged. IceTV's impecuniosity was established and, taking into account the high risk of non-payment of adverse costs, the absence of significant delay, the limited relevance of relative merits, and the defendants' wish to obtain representation, it was appropriate to order security for costs in the amount of $75,000.

Jurisdiction
Australia
Judgment Date
28 September 2007
Procedural Posture
Equity Division Duty List Proceedings Concerning Interlocutory Injunction and Security for Costs / Defendants' Notice of Motion to Discharge Interlocutory Injunctions, Seek Security and Related Orders
Outcome
Injunctions discharged; security for costs ordered; proceedings to be stayed if security is not provided; plaintiff to pay defendants' costs of the motion.
Legal Topics
['interlocutory Injunction' 'undertaking as to Damages' 'security for Costs' 'corporate Impecuniosity' 'joinder' 'cross Claims' 'delay']
['equity' 'civil Procedure'] ['interlocutory Injunction' 'undertaking as to Damages' 'security for Costs' 'corporate Impecuniosity' 'joinder' 'cross Claims' 'delay']

Case Brief

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Procedural Posture

Equity Division Duty List Proceedings Concerning Interlocutory Injunction and Security for Costs / Defendants' Notice of Motion to Discharge Interlocutory Injunctions, Seek Security and Related Orders

Legal Issues

  1. 1 ["Whether the interlocutory injunctions should be discharged because the plaintiff's undertaking as to damages was not valuable in light of the plaintiff's financial position." "Whether the plaintiff should provide security for the defendants' costs." "Whether the plaintiff's directors should be joined as co-plaintiffs or ordered to provide security." "Whether leave should be granted to file cross-claims against the plaintiff's directors."]

Ratio Decidendi

Because IceTV's financial deficiency showed that its undertaking as to damages was not valuable, and that undertaking had been material to the balance of convenience when the injunctions were granted, the interlocutory injunctions should be discharged. IceTV's impecuniosity was established and, taking into account the high risk of non-payment of adverse costs, the absence of significant delay, the limited relevance of relative merits, and the defendants' wish to obtain representation, it was appropriate to order security for costs in the amount of $75,000.

Court Disposition

Injunctions discharged; security for costs ordered; proceedings to be stayed if security is not provided; plaintiff to pay defendants' costs of the motion.

Orders

  • ['Order that the injunctions contained in paragraph 1 of the orders made on 3 July 2007 be discharged forthwith.' "Order that the plaintiff within 14 days give security for the defendants' costs of the proceedings in the sum of $75,000 in a form acceptable to the Registrar." 'Order that if security is not given in...