IceTV Pty Ltd v Ross [2009] NSWSC 980

IceTV Pty Ltd v Ross [2009] NSWSC 980

The post-employment contractual restraints on the defendants were valid as read down under the Restraints of Trade Act 1976 (NSW) and reasonably protected IceTV’s legitimate interests. The defendants breached the non-solicitation clause by working for Mobilesoft, with whom IceTV had been in negotiations. Damages were assessed on the basis of income earned from Mobilesoft attributable to those breaches, discounted for commercial uncertainties. The cross-claim regarding the undertaking as to damages on the injunction failed, as the defendants were aware of IceTV's financial position and the elements necessary to found a claim were not established.

Parties
Plaintiff: IceTV Pty Ltd; First Defendant: Duncan Ross; Second Defendant: Peter Vogel; Third Defendant: Vogel Ross Pty Ltd
Jurisdiction
Australia
Judgment Date
18 September 2009
Procedural Posture
Principal Judgment / Final Judgment After Trial
Outcome
The plaintiff succeeds. The defendants are liable for $35,000 plus interest and costs. Judgment for the cross-defendant on the defendants’ first cross-claim.
Legal Topics
Restraint of Trade, Employment Contracts, Confidentiality, Damages for Breach of Non Solicitation Clause
Equity Employment Law Contract Law Restraint of Trade Employment Contracts Confidentiality Damages for Breach of Non Solicitation Clause

Case Brief

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Parties

IceTV Pty Ltd

Plaintiff

Duncan Ross

First Defendant

Peter Vogel

Second Defendant

Vogel Ross Pty Ltd

Third Defendant

Procedural Posture

Principal Judgment / Final Judgment After Trial

Legal Issues

  1. 1 Whether the post-employment restraints of trade were valid and enforceable against the defendants
  2. 2 Whether the defendants breached non-solicitation and confidentiality clauses in their employment contracts
  3. 3 Whether damages are payable for breach of the non-solicitation clause

Ratio Decidendi

The post-employment contractual restraints on the defendants were valid as read down under the Restraints of Trade Act 1976 (NSW) and reasonably protected IceTV’s legitimate interests. The defendants breached the non-solicitation clause by working for Mobilesoft, with whom IceTV had been in negotiations. Damages were assessed on the basis of income earned from Mobilesoft attributable to those breaches, discounted for commercial uncertainties. The cross-claim regarding the undertaking as to damages on the injunction failed, as the defendants were aware of IceTV's financial position and the elements necessary to found a claim were not established.

Court Disposition

The plaintiff succeeds. The defendants are liable for $35,000 plus interest and costs. Judgment for the cross-defendant on the defendants’ first cross-claim.

Orders

  • Judgment for the plaintiff against the defendants in the amount of $35,000 plus interest and costs.
  • Interest to be calculated in accordance with Court rates from the appropriate date.