EXCLUSIVE: The former CEO of IceTV, Duncan Ross and the former TCO of the electronic program guide company, Peter Vogel have had damages awarded against them in the NSW Supreme Court after they were accused of breaching their employment and confidentiality contracts with IceTV when working on a $22M submission for a Federal Government grant.
Described as unreliable witnesses, Ross & Vogel were also questioned during the case about the work they did with TiVo prior to the product being launched in Australia. At one stage TiVo executives met on Sydney harbour with senior executives from IceTV.
They have also been question about a submission to the Australian Federal Government for the development of a rural EPG that would have cost $22M.
Ross and Vogel who formed a Company called Vogel & Ross after leaving IceTV were ordered by the NSW Supreme Court to pay $35,000 plus interest in damages dated back to when the case commenced.
They will also be responsible for IceTV’s cost in the case which is estimated at more than $200,000.
The pair has also lost a defamation action he bought against IceTV Executive Chairman Colin O Brien.
This is the second major court victory for IceTV who in April won their copyright case against the Nine Network after the High Court ruled six nil in their favour.
The court heard that shortly after their termination from IceTV, Ross and Vogel, undertook consulting work for a company called Mobilesoft.
When IceTV executives discovered this they sought an interlocutory injunction restraining Ross and Mr Vogel from working for Mobilesoft.
The injunction was granted on 3 July 2007 after IceTV claimed that work performed by Ross and Vogel for Mobilesoft constituted a breach of their obligations under their contract of employment with IceTV.
Vogel and Mr Ross did not accept that the restraints placed on them by the Court were valid and, if the restraints were valid they claim that they had not been breached.
Ross and Vogel then cross claimed against IceTV, claiming that they were entitled to damages because the injunction ought not to have been granted.
The court heard that after the Nine Network took action against Ice TV in 2006 the Board of IceTV abandoned a planned float, and terminated Ross and Vogel whose salaries at the time were described as substantial.
On July 4th 2006, Ross and Mr Vogel were given three months notice under their contracts with IceTV by the Executive Chairman of IceTV Colin O’Brien who also asked Ross and Vogel not to disclose for a one month period that they were leaving the company.
They were asked to keep working in their positions until the last day and Mr O’Brien promised Mr Ross and Mr Vogel that if they could find a buyer for the shares of Mr and Mrs O’Brien, and Mr Sutherland at a minimum price of $3 million, they would receive a bonus.
Within weeks of their departure from IceTV Mr Ross and Mr Vogel commenced consultancy work (through Vogel Ross) for Mobilesoft who were seen as a competitor.
However this deal fell apart when the Mobilesoft Board did not approve the appointments. Mr Simms, the Managing Director of Mobilesoft, told the court that there were members on the Board who did not think that Mr Ross and Mr Vogel were suitable for appointment and Mr Simms explained that there were factions who were opposed to Mr Ross and Mr Vogel.
The consultancy work undertaken by Mr Ross and Mr Vogel for Mobilesoft included the preparation of an application for a grant of $22 million from the Commonwealth Government Clever Networks scheme which would assist rural and regional communities.
The application was not successful.
The application to the Federal Government was based on providing an EPG to rural subscribers in who could be informed through a Community Program Guide (“CPG”) about activities in their local area.
This say IceTV was in breach of their former employment contract.
The Court heard that Ross & Vogel earned approximately $230,000 in consultancy fees from Mobilesoft and that Ross worked as Chief Executive Officer of Mobilesoft and Mr Vogel as Chief Technical Officer of Mobilesoft from 12 February 2007.
Ross and Vogel are considering an appeal in the case.
