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

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

Leave was granted only for a narrowed second cross-claim based on aspects of the oppression allegations because those allegations were sufficiently arguable, sufficiently connected with the primary proceedings, and sufficiently discernible from the pleading. Leave was refused for the other proposed claims because they did not disclose tenable causes of action, were inadequately connected with the primary proceedings, or, in the case of Part 4 Trade Practices Act claims, were special Federal matters more appropriately pursued in the Federal Court absent identified special circumstances.

Jurisdiction
Australia
Judgment Date
17 November 2008
Procedural Posture
Application for Leave to File Second Cross Claim / Procedural Ruling on Notice of Motion Filed 14 October 2008
Outcome
Leave granted to file second cross-claim as amended; defendants ordered to pay the plaintiff's costs of the motion.
Legal Topics
['cross Claims' 'leave to File Cross Claim' 'employment Restraint of Trade Covenants' 'oppression' 'collateral Abuse of Process' 'intimidation' 'exclusive Dealing' 'exclusionary Arrangements' 'misuse of Market Power' 'unconscionable Conduct' 'special Federal Matters']
['procedure' 'corporations' 'abuse of Process' 'torts' 'trade Practices'] ['cross Claims' 'leave to File Cross Claim' 'employment Restraint of Trade Covenants' 'oppression' 'collateral Abuse of Process' 'intimidation' 'exclusive Dealing' 'exclusionary Arrangements' 'misuse of Market Power' 'unconscionable Conduct' 'special Federal Matters']

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Procedural Posture

Application for Leave to File Second Cross Claim / Procedural Ruling on Notice of Motion Filed 14 October 2008

Legal Issues

  1. 1 ['Whether the proposed second cross-claim was sufficiently connected with the subject of the primary proceedings to be brought against persons who were not plaintiffs.' 'Whether the proposed second cross-claim disclosed arguable and adequately pleaded causes of action.' 'Whether alleged enforcement of employment restraint covenants against defendant shareholders could support an oppression claim under (CTH) Corporations Act 2001, s 233.' 'Whether alleged misleading of the Court when giving an undertaking as to damages could found a compensable abuse of process claim.' 'Whether the primary proceedings were alleged to have been brought for a collateral purpose amounting to abuse of process.' 'Whether the pleaded intimidation claim identified a threat of an independently unlawful act.' 'Whether Trade Practices Act Part 4 claims should be permitted in the Supreme Court where they were special Federal matters.' 'Whether the unconscionable conduct pleading disclosed conduct within (CTH) Trade Practices Act 1974, ss 51AA, 51AB or 51AC.' "Whether claims concerning Mr Sutherland's administration of Mobilesoft were sufficiently connected with the primary proceedings."]

Ratio Decidendi

Leave was granted only for a narrowed second cross-claim based on aspects of the oppression allegations because those allegations were sufficiently arguable, sufficiently connected with the primary proceedings, and sufficiently discernible from the pleading. Leave was refused for the other proposed claims because they did not disclose tenable causes of action, were inadequately connected with the primary proceedings, or, in the case of Part 4 Trade Practices Act claims, were special Federal matters more appropriately pursued in the Federal Court absent identified special circumstances.

Court Disposition

Leave granted to file second cross-claim as amended; defendants ordered to pay the plaintiff's costs of the motion.

Orders

  • ['Grant leave to the defendants to file a second cross-claim in the form of the draft second cross-claim attached to the Notice of Motion, but omitting claims for relief 1, 5, 6, 7, 8, 9, 10, 11, and 13; omitting from the particulars subscribed to paragraphs 27-30 particulars (a), (b), (h), (j), (k), (l), (m), (n),...