IceTV v Duncan Ross & Ors [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