aN ' CALInUOPL bv possession of business to one sell copyright - sale aqgreenent covvriqht whether asslanment on benalf not, whether copyright law. vale h OL Par tnersnip Court to take gevolvyea on purchaser by operaticn of gula Copyright Act 1968; ss. 31, 35, 36, 115 and THOMAS DOUGLAS MDPPAY and ANOP. +7, MATT No. G6 of 1984 Coram: Sheprard, Moriing and Spender TT. 14 September 1984 Brisbane IN THE FEDERAL COURT OF AATRALTIA } ) QUEENSLAND DISTRICT REGISTRY ) No, G5 of 1984 ) GENERAL DIVISTON ' On Apnozal fron_che Supreme Court ot Gueen:land SETWEES: THOMAS DOUGLAS MUPLAY ard ANOR. Appallants MuATrHEA KING Fespondent OF DER JUDGES MAKING ORDER Sheppara, Morilna and Spender JJ. DATE OF ORDER : 14 Septamber 1984 WHERE MADE : Brisbane THe COURT ORDE?SS TH3r: l. The appellants pav the responlent's c The appeal be disnissed. asts of the appeal. "7 IN THE FEDEPAL COURT ur SUETRALIS QUEENSLAND DISTRTIT FECTSTrY GENERAL DIVISION An Anoeezal from it Sureem: Couch of OUeensla MUsTAY ana Aor. Apreilants AND: CORAM: Sheppard, Morling ara Spender ul. SHEPPAPD J. FRACOUS FOR UU LCMau? This 15 an aopeal From a wadyment of the Supreme Court of Oueensland 'Connolly J.) by wnich the respondent recovered the sum of $106,696 from the appellants for Gamaces for infringement of copyriaht. The respodaent had also sued for damages for pasting off and, an the words of the learneu primary Judge. for "a number of (other. relared weongs z Honour did rot find if nece+sary to d3al with anv cauz* of action excepr that for infrinwearent of coevetgit. In 1980 and 1381 the first aseellant and the respondent ent ed r rae ™ h ry om fey eggs 2. carried on business in partnership. Trey Lusiness was known as, ''"Wot's Hapwoening on che Gold Coast". Yes worin 1oeal accivitv was to publish a magazine which bores the rare of the business. The magazine cansisteu of advertisements for various businesses and unformation of relevance to tourists sucn as lists of tourise attractions, accommodation. kia time tables. the location cf churches and tie ties, or services and other sucn matters. Four issues cr the mauatine were published, one ain 1339 and theea in Jsel. His xf ie) > wr Cc x my o pam ie; Bp that the oublications were proritanle. The partnership was dissoived recauze of dir lties . ie rt, " pom between the partners over the question or whether the second appellant. who 1s the first appellant's wire, snould have an incerest in the business. Notice or dissoluticn of the partnership was aiven by the first aooetlant on 21 ctober L362. It 1s common gecund that the partnershio was dissolved from that date. About that time the appellants began to canvass. the advertisers cf the pattuersnip. His honour Found that thev did $0 in aranner whieh fuaqested that the busitess ~nich they were conducting 'as the same business as that formerly Curried oon bv the paruneretai. un 2a Sepbemoer L5G] the second appellant hai rexistered A bueitess mame, 'Leok! What's flapeenina on the Gold Coast". His donour found that om anumber of occasions one or other of the appellants a \ ae ae \ . 3. informed advertisers thar the mew publicaticn wnich was ta come out under the butirecs name whieh tha second acvellant had reaqistered was repliciny che old. Advercisers vers unformed that the eiblication put oat Sy un= eartne:r ship "would not be coming out axvain'. The first issue of the néw magacirs was published for the period December 17931 to March Llyal. IE was suplisned under the name "Look! Over the Gold Coast", not unaer the business name which the seccnd aprellant had registcred. His Honour compared tne two publications and concluded chat it was not open to amuestiron that the first issue of "Look! Over the Gold form of a substantial art of the last issue of "Wot's tiappening on the Gold Toast" published by the tattnershiv: see Copvricght Ack 13603 ("the Ack") aea Lltil)(d) and sub-wara. 31(1)(ay(1). On 23 October 1931 the first appellant beaan proceadinas in the Supreme Court Yy One winding up of the partnership. On 29 Jstober 1381 the Court apscinted Mr, G.E. Lawson, a receiver "to receive the daebts now due and owing and other property, assets or erfects belonuina te the partnership ... with Fowe. toa carry on the (sartnership) business ...". The order directed Me. Lawson to receive the debts then du2 and orning and other property, ascets or effects Court of issue of 4. belonaina to the oartnersnis ana ty reno the stage reacied by the business in relac the publication "Wot's Haccerina on fhe G due to be published in Decenber 123A]. On o November 138i the Court made a Furth Faras. (2) and (121) cf the order we-2 at follows:- "€1) GORDON ERIC LARSON be appointed as Receirver/Manaqer In respect af the parctnecship and the partnership business "Blot s Haopenina"" and 25 all chings necessarv to wind up che said partnershis ani erfect a -cale of the business in tne lManrec hereinafter described; Se (11i)tne said GORDON ERIC Ls)lud do receive respondent s tender was in the sur of $02,00u made bv Purcchase tenders in writing From rither of botn of the partners, tne parties tu the present action, by noon on Friday, £ thirteenth dav of Novemrer, 1921 ar t offices of Bindeer Hariv & Co, Eagle Street, Brisbane, in respect the courchnase of the business, such purchase of the business net te include the various debts owec fo or bv the business of monies the proserty of the business;:" t 1m D eH he h ie) ao ory. ailed tender: f2r the pucchas c He received one from each of the wart first aepellant s tender was in the sium of $ ret 10" a rn % is) order. ball ~ Po) ag the resoondent was an vtoe form of an offer ta the business "and the asse-. ar the busines On 27 November 19681 tle. Lavoon entered into an agreement with the respondent for the =aie of the business to him for $62,000. Clauses 1, 3S ana 10 of Ene aarzement were as s follows:- 1. The vendor agrees cto sell to tne purchacer and the purchaser agrees Co purcnase from the vendor for the price of SiANTY-'Dvo THOUSAND DOLLARS ($62,000.09) all the right title an erest of the vendoc bv court Grder in and to a L certain business carriea on at the Gaia Coast in the Scate of Queensland known as Wot's Hapvening (herernafter called "the Said business") but not ancluding any debts owed to of by the sald cusiness or any monies which are the sroperty of the said business 'tocether with tne soodvi ll of the said business and the furniture and fittinas set ferth in the schetuls herero. d int virtue of the said C e ra ~ ee 5. On the 27th dav of Hovember 1931 the vendor shall az:ve the purchaser Fuil ana complete delivery of possession of the property hereby sold and tne phuechaser shall on the same dav take delivery and enter into possession of the sime. L0.The vender and the e that the aforesaiu eurenase price of SIXTY-TH) THOUSAND DOLLARS ($42,000.00) abovementioned shall 02 apeortioned as ta Goodwill $61,400.00 Fueniture and _ 80u.00 Fittings 562,000.00" Tha resoondent eruceeded to bring ouc three further tema oO. editions of the vartnershin publication. All resulted ina loss. Hi3 Honour found that manv of the forme: advertisers had transferred their business to the new business which published five issues in the period Decemoer 19381 to March 1383. His Honour found that copvrignal subsisted aun the partnership scublications. This finding, altacuch the subrect hb of on® of the arounds af appeal. was not challenved pefore us. Tne aground of appeal was e2xvres3ly abandoned. As earlier mentionzd his Horour found thar the appellints' first publication was an infreinaement of the copvriaht which subsisted in the wvartnershio s last publication It would seem, although the findings ace not spelt out. chat he was also of the view that each of the appoaliants' eublications was an infringement of the convriaht which subsisted in one or more of the partnership's publications. Those fFindinas were not the subject of arqument before us. Counsel for tne appellants accepted them without question. I mvselr Lave not considered whether these findings were justified. I ex ress wT no view on that suestion. The substantial question raised by the aonoeal is whether the respondent was entitieqd to maintain an acti infringement of covvrient. In ordec Lor him todo 56 he needed to establish that he was the owner of the ecryriagnt; +e2 ss. 31, 35, 36 and 115 of tne Act. H2re Henour found that 2p RS tnt s scdien "tiie t ne! Ook ie MIVA Ieee aT ae Cm RT WS. Pe oe ty * we may pee eee the respondent was the ovnec. Tt fs that firaing which counsel for the avpellants enallenaen. His Honour thoug.c that the first avpellanr and = tne respondent were Joint authors cf the wartnerante osunlications and -Ehus) the original owners of the copvright in them. He did not expres: this view conclusively 5b a @he did not fq py u ita ju think it necessasy to do 50. He thougal th nothin? turned on the question of whether the copveiaht was orlainallv owned by the first appellant alone or by the wartners iointly. He said:- "Let it be assumed that che copvriaght was indeed in Murvay (the farst wvee] lant) alone. To my mind the conclus1 i inescapable that in = situations already had copyriaht ........ cc eee ee eee in cases in Which he acatlired the eu in original adavertisements as author. in both cases 1t should be reqaried as property brouqaht into the partnersiip so as to become partnershi property and therefore to be qoverned by s. 23 of che Partnership Act." The Partnership Act to which nis Honour referred i= to be found in the Partnersnic Acte 18241 to lise Wl iO), His Honour's finding chat tne coovrigat was partnership eroperty was not challenced before us. Indeed, ccouns=l for the appellants exsresslv conceded that it was a partnershin asset. 8. His Honour then came toa Ere nuk of +612 guestion which concerns us. his Honour Deinted out tnat tnare courl be no intringement of covvright by an ownec; ge2 5.36. Unle cs the responaent could shew that he was the owner of the canvridht ral and that the fiest appellant had ceased to be the owner thereof the action 'aust fall. His Honour then reterrea to s. 195 of the Act vynich, so far as it 18S relevant. 15 a5 folicws:- "196.(1) Copvriuht 1: ia sublect to th =) Linment, by will and by devolution bv operation of law. (3) An aSstanment of copyright (whether total or partial) does nok have effect unless 160 #15 in writing sianed by of on penalf of the asslanor." i His Honour thought that there could be no suggestion that the respondent held the copvriant a3 an asslan.e within the meanina of 3. 196, Rut he noted chat the respondent was the assers of th= partnership by vartue of the contract of sale of the business to him, His honour acded. "The auestion chen is whether fae cowvo1idght care tc him by devajution by operation of law." His Honour considered the application to the case of che decision of the High Court in ie) ips) % IP nL nv. Komesaroff (19382) 56 A.L.I.F. 681 which he thought "\ 9. to be distinwuishable from the oregent case. aAmongsh other thinags his Honour 2za1d:- 'O''Brien's case (Siaora)d) is authority for che proposition that an interest aeyolves bv operation of law Wnen, by operation of law, and without any veluntury) act om the part of the previous owner, it passes From one MASS 15 3 person to ansther. O'Brien's_ 1en that a wu br Ww worry OO authority for che propositic interest devolves not onlv wnozn it passe from a person dving to a person livina bu when. by order of a Court. one credicor i substituted for another: Wailis ve. Smich £1882) 51 L.d. Ch. 577. I see ne alffarence in principle between the consecuuennes of an order which, inro wav tounlded upon the consent of the parties, orders che transmission of the inceresc. O'Brien's case establishes that the brinwing of a copyriaht into partnership prorerty, being an act of warties. 18 not an invuluntary act and that the leqai conseruence fiowing fiom zt cannot be described as ai davolution u within the meaning of 3s. 199(1). When however the Court orders sale and the sais 1s carried throuch by the act of cs officer, the receiver, Lhe legal consequence is thav the proverty vests in th2 purchaser bv operation of law and wiehouk anv voluntary act of sitnec of the parties. In this sonnection if should pe remenpered that the aproincment of a receiver does not vest the proserty in him and that he has no inherent pawer of sale, so tiat 11 he 1s to sell the sale must oe ordered by the Court. See Kerr on Receivers :idcth edition) at pp. 129. 1340, 198, 302. se2 no distinction in princivle between th vace of a garnist order the effect of wnien 138 to subspit one credits oy another av in Wallis v. Smith 'supral and the executed order of ths Court which passes the rroperty Irom one person to another It seems to me than iD ib ete (De - © wi f — rs ihe would aive effect cto the principles la down in O'Brien v. humesarorr (supra, uf were to hold, as I do, that the effect of the order of 6th November. 1981 and the consequential sale of 27th Neviwber was thac the copyright devoived py oreration of law upon Aung. It follows that in my coinion be ea FL i 10d. King 1s a camoerent plainniff and it further follews that the copyriaght was divested fron Murray so that thereafter his deai+nas with the works could properly be described as an infrinszement of the ccpvridnt." Notwitnstandine chat his honour had rejected the suggestion that the respondent Leld the copyrigat as an assianee, counsel for the respondent before us sougnt te support his Horour's ultimate conclusion not only upon the basis that the copvright had devolved upon the rezeondent bv cperation of law, but also on the batis that the respondent was in truth an assiaree of if. Discussion ensued as to wether the respondent should have tiled a notice cf contention to raise this point. Tne discussion was inconclusive. I express no view on the matter because counsel tor the aspellants 31d not origct to the matter being relied upon. The essential submissions relied upen by counsel for the acpellants were:- 1. Tne orders of the Court aid not authorise tare sate of the cooyright by Mr. Lawson as receiver. oe The aareenent for the sale oF the business to the respondent, upon ats true construction, dia no. purnort ow aye Pale Sic 21 -t al =" ll. 3. In anv event the provisions of 3. 136 Were such that there was no valid assianment of che copyright co the respondent and the cepyvright had not aevolyed upon him by operation of law. In the submission of couns¢i for tne raspondent:- 1. The terms of the orders and of th acreement were such as to incluce the copvrignt whicn Was a partnership asset. 2. Secticn 196 did operate s0 as to vest the copvrighe in the responient whether as assignees or bv devolution by operation of law. 3. Alternatively to (2), the respondent was entitled in equity to the copyright. I deal fiest with the question of construction. Two documents are to be construed. The first 15 the order of 5 November 1981 enpowerina the receiver to sell. The rtecond is the agreement for sale. Counsel For the agvellants relied upon the reference in paragraphs (1) and (111) of the order to "the business" or "the partnership bu we ifm fry St tu a te] diacinct Irom the assets of the business. But I bnink ir clear that 10 was intended that the receiver be encovered to sell the avsets other than those expressly excluded, that 15 "the 12. various debts owed to or bry the business or monies the property of the business". The power ta cell would bea largely empty one if the receiver were not able to sell assets other than qoodwill. Une would require verv clear words indeed before one would conclude that his power was limited in that war. A further matter which should be taken into account and which, 1n my opinion, nilitates against the arqument under consideration is the fact that the interim order of 29 Qctober 1981 expressly empowered the receiver to receive the assets of the partnershin. Except to the extent that particular assots are expressly excluded, I think the power conferred by the order of 6 November 1981 oudht ta be construed conformably with that conferred by the earlier order. I would therefore reyect the submission that the order of 6 November 1981 did not empower the recelver to sell all partnership assets, including the copyright here in question, other than those expressly excluded. As to the agreement. the prime consideration 1s the fact that clause 1 of the aqrerment expressly provides for the sale of the business "but not including any debts owed to ... or anv monies which are the property of the said business". As in the case or the order, the fact that these assets vere expressly excluded supports the view that all other assets were included. The clause qoes on to include in what is sold 13. both the qoodwill of the business and the fueniture and fittings which are ceferred to in clause 10. In my opinion, those considéracions put paid to the argument that the assets other than thos? expressly excluded were not the subject of the sale. Those assets included the cogpvright which was conceded to be a partnership asset. If there be anv remaining doubt, 1t as resolved. in my ooinion. by a consideration of the Lender. If there is ambiquity, it 1S approorlate to look to che tender to see what the respondent offered to buv. His tender was in the sum of $62,000 for the business itself "and the assets of the business". Tner2 is no reason why one should conclude that when it cane to the making of the aareerent the respondent would have been prepared to pav the same sum For no more than the goodwill and the furniture and fittings. Naturally, counsel for the appellants relied stronaly on clause 10 which by itself would suqqwest that oniy the qoodwill and the furniture and fittings were intended cto be sold. But it 2s obvious that the clause was included for revenue purposes, It snould not be allowed to control the construction of the contract. Tne parties were entitled, if thev chose. to provide that the entirety or the consideration was for the yooldwill and the furniture and fittings ana that no part of the consideration was to be assianed to the corvriaht or any other asset, 14. For the foresoingd reasons I am of wPiniun that the aareement for sale was intended to pass all the partnership assets, including the copvrighl, excurt those exprassly excluded. So the receiver vas empowerad to sell the receivership assets which included the copvriaqht. Ana@ he purported to unelude 1t amonast what was sold to the rezoondent. Likewise the respondent intended to acquire it. The remaining question 1s whether in some way the common intention of the receiver and the resvoondent in th.s resvect ral has been frustrated by farlure to comely with the law, particularly the wrovisions of 5s. 1565 of the Act. Fer the cespondent to succeed he needed tu show that he was e1ther the assianee of the copyright or tnat it had devolved upon him by operation of law. soomit fer the moment anv consideration of his having become entictied to the copvright by reason of an eguitaple assiaqnment as distinct fron one having effect in law or by reason of the applicapility of scmeé other equitable principle o¢ doctrine. I am satisfied that the agreement for tale is capable of fulfilling the descrireticn cf "assignment" ans. 195, The fact that the copyright 19 not mentiuned specitically does not, in mv opinion, prevent 1b operating aS an assignment. 15. That is because no srecial form of words 25 requirea and there 15 no reason why the assianment sv one verson ot the entirety of his assets shouid not include any copyrigne which is his; see generally Copinger and Skone Jam=3 on Copyricht, 12th edition, para. 405. Nevertheless there 1s a problem, For an assignment to operate under s. 156 1t must be siqned by or on behalf of the assianor. The agreement for sale 1s staned by the receiver. But a receiver does nat have more than possession of the assets in respect of which he 13 appointed. His appointment does not in any wav affect the ridght to the property in question. The Court 1ltself has possession by 1Ls5 receiver and his pess¢ssion 15 that of all parties to tre action according to their titles; see herr on Receivers, 15th edition. p. 130. Furthermwore, the receiver is never an agent for the parties entitled except in cases there their ridghts have been determined; Kerr fibid), p. 131. Trat is not this case. It seems to me that the reference ins. 1 ia) ® to an assignor is a reference to the person who has the title to the corpvright and not to a person such as a receiver wne 1s in possession of it for tne Court, albeit that he has heen empowered by the Court to seil ib. For that reason I an of the view that tnere has not here been an assianzent within the meaning of s. 130. 16. Io turn to the question of whether the copvridht has devolved on the resporaent by opsration of law. As the learned primary Judae said, Q'Briesn's case (Surra) 1s authority for the proposition that an interest devolves by operation of law whan, without anv voluntary act on the part of the previous owier, it passes from one person td another. The appointrent by the Court of the receiver involved no voluntary act on the part oF any fartv. ft is true that the proceedings were commenced by the first appellant and it nav be that the orders were made by consent. But the making of the orders took the matter out of the parties' hands. The Court by its recelver entered into possession of the partnership assets. The order had the effect of restraining either partner from dealirg with those assets. Once the order empowering sale was wsade, the only perso is} vfait s ca fe co a fell was the receiver actins as un officer of the Court, not fur the varties. His task was to realise the ass-ts, pav the ereditors and account to the partners for their entitlement to anv surplus. The only remaining event was the sale ts the resoondent. Certainly that involved voluntary acts on the part of both the receiver and the respendent in entering ainto the agreement for sale but that was no more than a working out of the chain of events which had taken che matter out of the hands of the pacties and placed it im the control of the 17. Court. The receiver, if he had not received a satisfactory offer from either partner. would no daubt have songht other purchasers who had had no previous connection with che business. In my opinion the proper analvsis of what has happened is that, within the meaning of s. 136, the copvright has devolved on the responaent by operation of law. My conclusion in that respect makes 1t unnecessary to deal with the submission that in anv event the respondent was entitled to succeed in equity. For the foregoing reasons I am of opinion that the submissions relied uson bv counsel for the uppellants snould a Fail. I would dismiss the appeal with costs. ro { I certify that ths and "2° /G preceding pags are a ue <opy judgment he reid Mr Justice Shepaare. ud. Pp pitchor~ nr IN THE FEDERAL COURT OF AUSTRALIA ) - ) QUEENSLAND DISTRICT REGISTRY ) No. G6 of 1984 ) GENERAL DIVISION ) BETIEEN: THOMAS DCQUGLAS MUPRAY ard KAYLENE JOY MURRAY eplicant AND: MATTHEY KING Respondent CCRAM: Sheppard, Morling and Spander JJ. REASONS FOR JUDGMEN AORLING J. This 15 an appeal from a decision of the Supreme Court of Queensland (Connolly J) in proceedings brought by the respondent ("King") for amages for infringement cf ccpyright, passing off and a number of related weongs. King's action was brought against Thomas Douglas Murray ("Murray") ane his wite Kaylene Joy Murray. Other proceedings brought by Murray against King were consolidated with King's action. The learned trial judge found for King in his action against Murray and his wife and gave judgment against them for infringement of cosyright in the sum of $106,696.00, which sum included a component for inter oO a ray ' He ¢ 1s frem that judgment that this appeal is brought. No rh rafuQ au were made by the trial judg2 on the cther causes Gc ca ww if) ct ao a. H ct being unnecessary *o do so. In May 1980 Murray and Kung were carrying on independent businesses in the sam2 prerises. Murray conducte a business known as Advertising Design. The purpose of this business was, for the most part, to produce advertising layouts for clients. These layouts were comprised of a pictorial or graphic component together with advertisirg material. King's business was the production cf a directory of accovmcdation on the Gold Coast. In May 1980 Murray and King decided upon a joint venture for the production of a magazine advertising net merely accommodation but other activities of interest to the tourist trade. The magazine was to be named "Wot's Happening on the Gold Coast". This business name was registered on 13 May 1980, Murray and King being snown as the proprietors. The first editio: Q rh the magazi fo oOa ui é ve) = u nm ia) pA cfay wb ts the business name in Decem leg wa t+ w ve) °o It consisted of advertise- ments for various businesses, some but not all of which included a pictorial corponent, either photograrhnic or hand drawn in origin. In addition, the advertiserents all contained textual material which set cut the features of ths business The magazine included information of relevance to the tourist trade, such as lists of tourist attractions, lists of accommodation, the location of art galleries and of public boat launching ramps, bus timetables, location of churches and times of services, and the like. 3. The magazine had a reasonable success and was published quarterly until the end of 1981. The learned trial judge found that the history of the magazine was one of continuing improvement and profitability. He aso round that the work publishea by the partnership was capable of being the subject of copyright, and that the copyright was part of th partnership property. No challenge was made to these findings » ¥ and the appeal was argued upon the basis that they were correct. Differences arose between King and Murray and these led to the dissolution of the partnership. It is unnecessary to refer to the nature of these differences. On 28 September 1981, when the fourth 1ssue of the magazine was in course of distribution, Mrs Murray registered a business name, "Look! What's Happening on the Gold Coast". Her application for registration showed that the business hac started cperations cn 3 September 1981. 'The application described the business as "publication of magazine". Cn about 25 September 1981 Murray removed himself from the partnership's premises, taking with him certain of the art worx which, he contended, was h pH. ul own property. on 21 October 1981 Murray gave notice of dissolution of the partnership and it was common ground between the pacties that it was dissolved from that dace The Murrays canvassed the advertisers of the partner- ship and '*hey did so in a manner which suggested that the 4. business which they were running w wu wv ct oa in) ie] we coy) o c uy b+i) Mw uw [oe s p number of occasicns one or other of the Murray informed advertisers, in effect, that the new publication was replacing the old, saying worcs tc the effect that the old publication would not be coming out again. The first iscue of Mrs Murray's ragactine was oublished for the period December 1981 - March 1982. Ths magazine was published under the name "Look! Over the Gold Coast". It was different in size from the partnership magazine. The overall impression however was that there was a substantial identity, not merely a similarity, of the greater part of the material including the general information material to whicn reference has already been made. learned trial juddce found that the first issue of "Look! Over the Gold Coast" was a reproduction in a material form of a subs cr antial part of the last rssue of "Wot's Happening on the Gold Coast" as vrublished Ey the partnership. On 23 October 1981 Murray issued a writ in the Supreme Court against King for the winding up of the partnership. On 29 October 1981 an interim roce.iver was appointed and on 6 November 1981 by a further order the urterim receiver was appointed receiver/man2ger in respect of the partnership and the partnership business, and was ordered to do all things necessary to wind up the partnership and effect a sale of the business and to receive tanders in writing from either or both 5. partners. Both partners tendered for the business, Murray's tender being $50 and King's $62,900. On 27 November 1981 the receiver entered into an agreement in writing for the sale to King 'for $62,900 of "all the right title and interest of the vendor by virtue of (the order of 6 November, 1981) in and to th? business known as 'Wot's Happening' but not including any debts cowed to or by the business or any roneys the prcperty of the business together with the goodwill of the business and furniture and fittings". At the trial King put his claim for damages for breach of copyright upon two alternative bases. First, 1t was argued that the copyright had been assigned to him by virtue of the ft provisions of the agreement of 27 Novamber 1981. In the alternative, it was argued that he had acquired the copyright "by devolution by operation of law" within the neaning cf sub-s.196(1) of the Ccsv tS iw Sy ict wD Q ct i) ive) nO toq learned trial judge found for Kang on the alternative basis. He hold that the effect of the order of 6 August 1981 and the consequential sale of 27 November 1981 was that the copyright devolved by epecation of law upon King. the hsaring of the asreal to two submissions. It wa submitted that his xAonour was ain error ain finding that the copyright cevcived by creration of law upcn King. Seccendly 6. was submitted that the copyright was not assigned to King by virtue of the agreement because, upon its proper constructicn, the agreement did not refer to ar dsal with that sart of the assets of the partnershis consisting of the ownership of the walla copyright. It was also argued that, even if it did, ¢t copyright. It is convenient to deal first with the eftect of the agreement since, if it was effective to assign the copyright to ) 2 To understand the argument that the agreenent was effective to assign the copyright to King it is necessary to refer to the events that preceded it. On 29 October 1981 the Master of the Supremes Court ordsred that "until the Fifth day of November, 1991 or further Order that Gorian Eric Lawsen be appointed Receiver to recoive tne debts now Cue and owing and other proverty, assets cr effects belonging to th2 sartnership eee On 6 November 1981 the Mascec made fucther orders, including orders that: "Ci) GORDON ERIC LAWSON de appointed as Receiver/Manager in respect of the partnership and the partnership business "Wot's Happening" ani doall things neces (iii) the said GORDON ERIC LAHSON do recetve terd2rs in writing from eaither or both of the partners, the parties to the present acticn, by noon on Friday, the thirteenth day of November, 1981 at the offices of Binder Hamlyn & Co. 167 Eagle Street, Brisbane, in respect of the purchase of the business, such purchase or the business not to inclidie the vcerious property of the business; The tender made by King for the purchase of the business was in the following terms: "IT hereby effer to surchas2 the business Yot's Happening" and the assets of the business for the amount of Sixty two thousand dollars ($62,000.00) payable as follows:" The agreement of 27 day of November providac, in part, follows: $y u "AGREEMENT made and entered into tt 27th day of November 1981 BETEEN GOPDON ERIC LAWSON cf 157 Eagle Street, Brisbane ain the Stace cf Queensland, Chartered Aczountant (th person appointed Receiver/Manager of the galtrershia business xnown as Wot's Happening, by order of the Supver2 Court of Queensland dated the sixth day cz November 1921) 8. (hereinafter called 'the vencor') of the first part and MATTHEW KING of 3094 Gold Coast Highway, Surfers Paradise in the State of Queensland the second (herainatter called 'the purchaser') of part WIMEREBY IT IS AGREE AS FOLLOWS: - 1. The vendor agrses to sell to the purchaser and the purchaser agrees to purchase from the vendor for the grice of sixty-two thousand dollars ($62,000.00) all the right title and interest of the vendor by virtue cf the said court ordsr in and to a certain business carried on at the Gold Coast in the State of Que ensland known as Wot's Happenin (hereinafter called 'the said business') Dut not including any debts owed to or by the said business or any monies which ar the property of the said business together wth the goodwill of the said business and the furniture and fittings sat forth in the schedule hereto. eer ee 10. The vendor and the purchaser hereby agree that the aforesaid purchase price of SIXTY-THO THOUSAND DOLLARS ($62,000.00) abovementioned shall be apsortiocned as to Goodwill $61,400.00 Furniture & Fittings 600.00 It was submitted on behalf of Mr and Mrs Murray that, upon its proper construction, the agreement cid not refer to the partnership asset consisting of the ownership of the copyright. This submission fcunded uron the absence of any pecific reference to the copyright in the agreerent and, in Li) particular, to the absence to any reterence to copyright cl.10. I do not think this construction of the agreement is sound. It is plain that the business that the receiver sold to King was the business referred to in the order of the Supreme 9. Court. It was pursuant to that order that King rade his tender which led to the making of the agreement. It is true that the agreement between King and the receiver was not allowed to rest at the mere accertance of King's tender, but was formalized in the agreement cf 27 November. But, as Qa matter of construction, the reference in cl. 1 of the agreement to "all the right title and 'interest of the vendor by virtue of the sald Court Order in and toa certain business "must be taken to refer to all the assets of that business, except the assets which are spe cifically excluded by the words "nct including any debts owed to or by the said business or any uw moneys which are the property of the said business". The only significant assets of the business wore the goodwill attached ne to the business nazre and the wsagazine which the business produced and the copyright in the magazine. Without the copyright, the goodwill of the business was vistually non-existent. Counsel for Mr and Mrs Murray submi a fag cr Q fon cr on fp ct ct D a goodwill of the business consisted only cf the prosrect that customers of the magazine would continue to do DSusiness with it. But even if that were so, their willingness to do business with 1c depended largely, if not exlusively, upon its capacity to continue publishing the magazine. To do this, it was necessary that the business retain the copyright. t is aun cl. 1 of the agreerent. 10. It is true that no value was attributed to the copyright in cl.10 of the agreement but I do not think tnat this omission limits the operation of cl.l. Clause 10 was plainly inserted only for stamp duty purposes and not asa catalogue of the assets massing under the a The purpose of the court's order was to ensure that all the assets of the partnership were sold and the procesds of sale accounted for to the partners. Since the agreement was made in furtherance of the court's orcer (which is referred to in the agreement itself) tnere is no room for an argument that the agreement was not intended to dispose of the assets of the partnership including the ownersnip of the copyright. If there were any ambiguity in the language of the agreement, it would be permissible to refer to the circumstances surrounding the making of it including the terms of King's tender, in which he offered to purchase "tho assets of the business" see Cozelfa Corstruction Pty LBta v State Pail Authoritv (N.S.F.) (19823 56 ALUJR 459 per Mason J. at 462 Counsel for Mr and Mrs Merray submitted a further argument that, eaven if the agreoment did intend to transfer t copyright to King, 1t @id not effectively do so Decause the agreement did not comply with the provisions of sub-5.196(3) th: Copyright Act which provides as follows: ll. 196. (3) An assignment of copyright (whevher total or partial) does not have effect unless it is in writing signed by ocr on behali of the assignor."" The argument proceeded upon the basis that there was no assignment because the owners of the copyright, i.e. Murray and ung, had noc executed any assignvent cf it. It was further submittei that since the assets of the partnership (including the copyright) were not vested in the receiver (see Kerr on Receivers, l5th ed, p. 136) he was unable to assign it. But this argument doé¢s not deal with the question whether there was an effective assignment "on behalf of" the owners of the copyright within the meaning of sub-s.195(3). When Murray and King entered into their partnership agreement they did so in the presumed knowledge that in the event of the partnership being dissolved, the court might apooint a receiver and empower him to sell the partnership assets. In my opinion the sale of the partnership assets by the receiver was a sale "on behalf ci" the partrers. Then the receiver ssid the partnership assets to King he did not sell them on his own behalf. And whilst he sold the assets under the authority of the court's order, it is not an apt use of language to say he sold them on behalf of the court. Ina real sense the scale was on behalf of the partners, to whom the receiver vas obliged to account for the proceeds of salo. Ece Kerr, oo. cib. 12. It is true that the recciver was not the agent of the partners - see Ingham v Sutherland (19390) 63 1.T., 614 and Boreham v Goodall (1911) 1 Ch. 155. Fe was an officer of the court appointed for the benefit of the partners - see Davy v Scarth (1906) 1 Ch 55 at 57 and Re Nawdigat>s Colliery Lte Newdigate v Newdigate Colliery Ltd. 11912) 1Ch 458. But sub-3. 196(3) does not refer to an assignment by the assignor or his agent. It refers to an assignment by cr on behalf of the assignor. It has been held that the phrase "on behalf of" when used in trade practices legislation cowrrshends acts not necessarily falling within the concept of ayency - see Commissioner of Trade Practices v Caltex 011 'fAustralia) Ptv. Ltd. (¢(1974) 23 FP.L.R. 457 and Trade Practices Commission v Bata Shoe Corvany of Australia Pty. Ltd (No.2) (1980) 149 at 159. And it has been held that the phrase "cn whose behalf" does not necessarily urely that a transacticn was with the actual authority of the serson represented. See Ctren v Beabout (1948) A.L.R. 13. In Gillespie v City of Glaszow Bank 2h 540 (1879) 4 App. Cas (A case where a transfer of bank stock to Partners of a firm was expresse fom cr [e) ty D for Lehos or the firm") Lord Hatherley said at vo. 642: "TJ hold the aupression 'for behoof of' to nean exactly the same as aif the words used fai been 'on behalf of' or 'for the benarlt of ...'". areal sanse, for the benefit cf the rartners. In ny cf¢inmisn even though the receiver vas not the agent fo: sale of the 13. owners of the copyright the entry by him into the Lav Wy bad wu 1D bat Q io] cr constituted a sale by him on behalf of the owners. Hence, ur.less the form of words uted in the agreement wera ineffective to assign the copyright to King, it passed to hin. There is much authority for the proposition that no particular form of words is necessary to effect the assignment U2 o of the copyright. e generally, Copinger and Stone Jares on Copyright, 12th ed., ie] ara. 405. It was faintly argued that the wording of the agreenent was ineffective to constitute an assignment, but no authority was cited in support of this proposition. In my cpinion, the wording oi the agreement was effective to assign the copyright, as one ou Fh the assets of the business, to King. He was therefore entitled to succeed in the action upon the basis that the copyright had been assigned to hin. Had I been of the opinion that the ccepyraight had not been assigned to King by force of the agreerent, I would have been of the cpinicn that Xing was entitled to succeed in the action because the covyright had devolved upen him by operation of law. I agree with what the learned trial judg2 said or matter. eee ene amen mere me ny mente Sree at IN THE FEDEPAL COURT OF AUSTRALIA ) CUEENSLAND DISTRICT REGISTPY ) OLD Ge of 1984 GENERAL DIVISTON ) BETWEEN : THOMAS DOUGLAS MURRAY and KAYLENE JOY MURRAY Appellants AND: MATTHEW KING Respondent CORAM: SHEPPARD, MORLING & SPENDER JJ. DATE: 14 SEPTEMBER 1984 REASONS FOR JUDGMENT SPENDER J.: This appeal is brought trom a decision of Connolly J. in the Supreme Court of Queensland in which his Honour gave judgment for the respondent against the appellants in the sum of $106,696.00 being damages (and interest thereon) for infringement of copyright. In about May 1980, King and the male appellant ("Murray") entered into a partnership to market an advertising magazine called "Wot's Happening on the Gold Coast". The agreement was oral. The business name "Wot's Happening on the Gold Coast" in respect of that business was registered on 13 May 1980, Murray and King being shown as the proprietors. The partnership produced four issues of the magazine, the first issue being published under date December 1980. It was published roughly quarterly in 1981. On or about 25 September 1981, Murray removed himself from the premises from which the partnership had been conducted taking with him certain of the artwork which he claimed was his property. On 28 September, when the fourth issue ot the magazine was in the course of distribution. Mrs Murray reqistered a business name "Look! What's Happening on the Gald Coast". Her application for reqistration indicated that the business was "publication of maqazine" and that the business commenced operations on 3 September 1981. The first issue of this magazine, which the primary judge referred to as Mrs Murrav's magazine, was published for the period December 1981 to March 1982 under the name "Look! Over the Gold Coast". This magazine was different in size from the partnership magazine being narrower and marginally shorter. His Honour concluded that the overall impresgion was that there was a substantial identitv, not merely similarity, of the qreater part of the material in the two maqazines. His Honour found that "It is not open to question that the first issue of 'Look! Over the Gold Coast' is a reproduction ina material form of a substantial part of the last issue of 'Wot's Happening on the Gold Coast' as published by the partnership". This finding was not the subject of challenge on appeal. There were negotiations between Murray and King but on 21 October 1981 Murray gave notice of dissolution of the partnership. The parties are agreed that the partnership was dissolved as and from that date. The primary judge found "I have no doubt that' the Murray3 canvassed the advertisers of the partnership and that they did so in a manner which suggested that the business which they were running was the old business. ... I find that ona number of occasions one or other of the Murrays informed advertisers, in effect, that the new publication was replacing the old, saying words to the effect that the old publication would not be coming out agqain.". On 23 October 1981, Murray issued a writ out of the Supreme Court of Queensland against King for a winding-up of the partnership. On 29 October 1981, on the application of Murray, Gordon Eric Lawson was appointed as interim receiver "to recelve the debts now due and owing and other property, assets or effects belonging to the partnership between the plaintiff and the defendant, ... with power to carry on the said business asa going concern" and he was directed "to receive the debts now due and owing and other property, assets or effects belonging to the partnership in relation to the publication 'Wot's Happening on the Gold Coast' issued on 24 September 1981.". On 6 November 1981, Master Weld ordered that Lawson be appointed receiver/manager in respect of the partnership and the partnership business. That order included the following terms: (1) Gordon Eric Lawson be appointed as Receiver/Manager in respect of the partnership and the partnership business "Wot's Happening" and do all things necessary to wind up the said partnership and effect a sale of the business in the manner hereinafter described. (iii) The said Gordon Eric Lawson do receive tenders in writing from either or both of the partners ... in respect of the purchase of the business, such purchase of the business not to include the various debts owed to or by the business or monevs the property of the business." Both partners tendered, Murray's tender being $50.00 and that of King being $62,000.00. A tender by Kina for the business "Wot's Happening" was in these terms: "Tender of Matthew King for the business 'Wot's Happening'. I hereby offer to purchase the business 'Wot's Happening' and the assets of the business for the amount of $62,000.00 payable as follows: 1. Ten thousand dollars ($10,000.00) within fourteen days from the acceptance of the tender; 2. The balance payable within a further period of thirty (30) days." The tender was not simply accepted but an agreement described as a business contract bearing date 27 November 1981 was entered into between Lawson and King. That agreement provided in part - BUSINESS CONTRACT AGREEMENT made and entered into this 27th day of November 1981 BETWEEN GORDON ERIC LAWSON of 167 Eagle Street, Brisbane in the Sate of Queensland, Chartered Accountant (the person appointed Receiver/Manager of the partnership business known as Wot's Happening, by order of the Supreme Court of Queensland dated the sixth day of November 1981) (hereinafter called 'the vendor') of the first part and MATTHEW KING of 3094 Gold Coast Highway, Surfers Paradise in the State of Queensland (hereinafter called 'the purchaser') of the second part, WHEREBY IT IS AGREED AS FOLLOWS: - 1. The vendor agrees to sell to the purchaser and the purchaser aqrees to purchase from the vendor for the price of SIXTY-TWO THOUSAND DOLLARS ($62,000.00) all the right title and interest of the vendor by virtue of the said Court Order in and toa certain business carried on at the Gold Coast in the State of Queensland known as Wot's Happening (hereinafter called 'the said business') but not including any debts owed to or by the said business or any monies which are the property of the said business together with the goodwill of the said business and the furniture and fittings set forth in the schedule hereto. 10. The vendor and the purchaser hereby agree that the aforesaid purchase price of SIXTY-TWO THOUSAND DOLLARS ($62,000.00) abovementioned shall be apportioned as to Goodwill $61,400.00 Furniture & $ 600.00 Fittings $62,000.00" Because of submissions which were founded on the terms of clause 10 of the contract, it is useful to note that in clause 7 of that contract it was recited"... the purchaser has completed the said purchase after satisfactory personal inspection and investigation of 'the said premises and business and the said fixtures, fittings, plant, trade utensils, implements, stock and licences and has perused such records of financial transactions relating to the said business as he has desired to inspect.". The primary judge found that the magazine ""Wot's Happening on the Gold Coast" was a literary work within the meaning of 3.32 of the Copyright Act 1968. He also found that while the major part of the compilation of the work was Murray's, King did make a textual contribution and that "If it were necessary to decide the point I should regard this as a case of joint authorship". Further, the primary judge found that both in respect of material in existence prior to the formation of the partnership of which Murray was the owner of copyright, and in cases in which Murray acquired the copyright in original advertisements as author, "it should be regarded as property brought into the partnership s0 as to become partnership property and therefore to be governed by 3.23 of the Partnership Act £1891-65 (Qld)J". The primary judge summarized the central issues before him in these terms: "There can be no infringement of copyright by the owner: 38.36; and it 1s the owner of the copyright who is empowered to bring an action for infringement: g.115(1). King brings this action for infringement against Murray and Mrs Murray. Unless therefore 1t can be shown that King is the owner of the copyright and that Murray has ceased to be the owner the action is simply not competent. ... If King is to be competent to maintain this action it must be shown that he is the sole owner of the copyright. In the circumstances of the case this can only be soif the interest of Murray, whether it be the whole of the interest in the copyright or that of a tenant 1n common, can be shown to have been transmitted by assignment or by devolution by operation of law. An assignment is ineffectual unless it is in writing signed by or on behalf of the assignor. There is no suggestion that King holds the copyright as the assiqnee in this sense. He is however possessed of the assets of the partnership by virtue of the contract of 27th November 1981. The question then is whether the copyright came to him by devolution by operation of law." The primary judge reached the conclusion that where a Court orders a sale and the sale is carried through by the act of ats officer, the receiver, the legal consequence 1s that the property vests in the purchaser by operation of law and without any voluntary act of either of the parties. He then went on to hold that the effect of the order of 6 November 1981 and the sale of 27 November was that the copyright devolved by operation of law upon King. He found further that King was a competent plaintiff and that the copyright was divested from Murray so that thereafter his dealings with the work could properly be described as an infringement of copyright. On the appeal, it was expressly conceded by the appellants that the magazine "Wot's Happening on the Gold Coast" was the subject of copyright, and that the copyright in this magazine was an asset of the partnership between Murray and King. Further, there was no challenge on the appeal to the finding by the primary judge of infringement, nor was there any challenge made to the quantum of damages for infringement as assessed by the primary judge. The sole issue argued by the appellants on the appeal was the competency of King to maintain an action for copyright. This issue involved three submissions: first, as a matter of construction, the business contract dated 27 November 1981 was not effective to transmit to King the copyright in the magazine; secondly, there was no assignment in writing signed by or on behalf of the assignor as required by 3.196(3) of the Copyright Act 1966 and thirdly, no copyright came to King by devolution by operation of law. As to the question of construction, the primary judge in my view was right in concluding that the partnership asset consisting of the copyright in the magazine was included in the subject matter of the contract of 27 November 1975. On 29 October 1981 Mr Lawson was appointed interim receiver "to receive the debts now due and owing and other property, assets or effects belonging to the partnership in relation to the publication 'Wot's Happening on the Gold Coast' 1ssued on 24 September 1981". The order of 6 November 1981 empowered the receiver "to do all things necessary to wind up the said partnership and effect a sale of the business" and authorised him to receive tenders in respect of "the purchase of the business, such purchase of the business not to include the various debts owed to or by the business or monies the property of the business". Express exclusion of particular assets in the order of 6 November 1981 fortifies my view that the receiver was authorised to sell all those assets not expressly excluded, which of course included the copyright in the magazine. In the agreement of 27 November, Lawson is described as "the person appointed Receiver/Manager of the partnership business known as Wot's Happening, by order of the Supreme Court of Queensland dated the sixth day of November 1981". Clause 1 of that agreement speaks of an agreement to sell to King, "all the right title and interest of the vendor by virtue of the said 10. Court Order in and to a certain business carried on at the Gold Coast in the State of Queensland known as Wot's Happening ... but not including any debts owed to or by the said business or any monies which are the property of the said business together with the goodwill of the said business and the furniture and fittings set forth in the schedule hereto." Again the express exclusion of named assets of the business supports the conclusion that what 1s sold are all other assets of that business. The terms of clause 10 purporting to apportion the purchase price between goodwill and furniture and fittings is not determinative of the subject matter of the contract. That this 1s so is reinforced by the terms of clause 7 to which I have earlier referred. The probabilities are that clause 10 had some revenue purpose; it does not serve in my view to restrict the subject matter of the contract to the goodwill of the business and the furniture and fittings. Indeed, the terms in which clause 1 are expressed, purporting to sell "all the right title and interest in and to a certain business ... but not including any debts owed to or by the said business or any monies which are the property of the said business together with the goodwill of the said business and the furniture and fittings" suggest that there 1s something more than the goodwill and furniture and fittings to be sold. ll. If the contention of the appellants as to the construction of the contract of 27 November were correct, it would mean that King was paying $62,000.00 for a business which was virtually worthless, for without the copyright any goodwill was nominal. It is proper in this case to have regard to the terms of the court order of 29 October 1981 and that of 6 November 1981 and to the terms of the tender by King to identify the subject matter of the contract of 27 November 1981. In relation to the tender, King offered $62,000.00, the same price as in the contract he eater signed; this price was offered for "the business 'Wot's Happening' and the assets of the business". I have no doubt that the receiver intended to dispose of all assets of the partnership except those expressly excluded in the contract of 27 November 1981 and that King intended to acquire all the assets of the partnership except those expressly excluded. Ordinarily, of course, extrinsic evidence 1s not admissible to add to, or subtract from, vary or contradict the terms of the written instrument: gee Goss v. Lord Nugent (1833) 5 B. and Ad. 58; E.R. 713, the principle of which was recently referred to by Mason J. in Codelfa Construction Pty Ltd v. State Rail Authority New South Wales €1982] 56 A.L.J.R. 459 at 461. It is clear from the authorities however that extrinsic evidence is 12. admissible to identify the subject matter of a written instrument. See Akot Pty Ltd v. Rathmines Investments Pty Ltd C1984] 1 QdR. 302, in which some of those authorities are referred to. For the foregoing reasons I am of the view that the subject matter of the agreement of 27 November was the entirety of the assets of the partnership except those expressly excluded, and in particular, copyright in the partnership magazine was included. Next, I agree with the conclusion by Connolly J. that "(King) is ... possessed of the assets of the partnership by virtue of the contract of 27 November 1981." My view, however, is that the copyright came to King by virtue of that contract, not by devolution by operation of law as his Honour concluded, but as an assignment to him by Lawson on behalf of the partners. Section 196 of the Copyright Act 1968 provides, so far as 1s relevant, as follows: "196(1) Copyright is personal property and, subject to this section, is transmissible by assignment, by will and by devolution by operation of law. (3). An assignment of copyright (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor. 13. Sub-s. 196(3) does not require formal words: see, generally, Lahore Intellectual Property Law in Australia, Copyright, 1977 paras. 905 and 906; Copinger and Skone James on Copyright, 12th ed... para. 405. In particular, in my view, it is not necessary that copyright be referred to, in terms, in the agreement of 27 November 1981. Parol evidence is admissible to identify the subject matter intended to be assigned and referred to in the document: E.W. Savory Ltd v. The World of Golf Ltd £19141] 2 Ch. 566. The question for resolution is whether the transfer of the copyright to King by Lawson was "on behalf of" the assignors, or whether it constituted "a devolution by operation of law", or neither. The relevant principle applicable to partnership assets on dissolution is: "In the absence of a special agreement to the contrary, the general rule is that on the dissolution of a partnership all the property belonging to the partnership shali be converted into money by a sale, even although a sale may not be necessary for the payment of debts: Lindley on Partnership, 8th ed., p.623. The Court order appointing Lawson as recelver assets of Vine v. Raleigh (18833 24 Ch.D 238 at 243 and Kerr on Receivers, 15th ed., 14, In Darby v. Darby (1856) 3 Drew. 495, 503 Kindersley V.C. said: 'What is the clear principle of this Court as to the law of partnership? It is, that on the dissolution of the partnership all the property belonging to the partnership shall be sold, and the proceeds of the sale, after discharging all the partnership debts and liabilities, shall be divided among the partners, according to their respective shares in the capital. That is the general rule; it requires no special stipulation; it is inherent inthe very contract of partnership. That the rule applies to all ordinary partnership property is beyond all question, and no one partner has aright to insist that any particular part or item of the partnership property shall remain unsold, and that he shall retain his own share of it in specie. ..." (Per Swinfen Eady L.J. in Hugh Stevenson & Sons Limited ov. Aktiengesellschaft fur Cartonnagen-Industrie (£19173 1 K.B. 842 at p. 846.) the partnership did not vest the copyright pp.130, 136. Lawson was not selling the assets of the business on his own behalf. The nature of the possession of a receiver and his powers are discussed in Kerr on Receivers, 15th Ed., at p.165. . The effect of the appointment of a receiver is to paralyse the powers of the company to deal with its property (citing Moss S.S. Co v. Whinney £1912] A.C. 263). The legal persona of the company, however, still subsists, and its powers in relation to the property comprised in the appointment are delegated to the receiver by his appointment as manager with whatever limitations may be imposed by the order (citing Parsons v. Sovereiqn Bank of Canada (19131 A.C. 160): The receiver is not, prima facie, an of the in him: 15. agent of either the company or the incumbrancers, but an officer of the court exercising the company's powers as such, and as a principal." At p.232 dealing with the effect of appointment of manager, it is said: . The appointment of a receiver and manager over the assets and business of a company does not dissolve or annihilate the company, any more than the taking possession by the mortgagee of the fee of land let to tenants annihilates the mortgagor. Both continue to exist; but the company is entirely superseded in the conduct of its business, and deprived of all power to enter into contracts in relation to that business, or to sell, pledge or otherwise dispose of the property put into the possession or under the control of the receiver and manager. The powers of the directors in this respect are entirely in abeyance so far as the company is concerned, and the powers of the company are exercised by the receiver under the direction of the court." All but the last sentence of this passage isa direct quotation of Lord Atkinson's speech in Moss Steamship Company Limited v. of the the sale sub-s. Whinney £19123 A.C. 254, at p.263. In my view, therefore, Lawson was not selling partnership as agent of the partners, but was the assets exercising the powers of the partners under the direction of the Court, and was "on behalf of" the partners, within the meaning of 196(3) of the Copyright Act. 16. In truth, the purpose of the appointment by the Court of Lawson as receiver was to enable the partners to obtain that to which they were entitled: see Kerr on Receivers, p.6. It follows that King was a competent plaintiff, the copyright having been assigned to him by virtue of the contract of 27 November 1981. That assignment was a legal one and it is unnecessary to consider the question of equitable assignment. If, contrary to my opinion, the agreement of 27 November 1981 is not an assignment signed by Lawson on behalf of the partners, I would regard the copyright of the partnership magazine to have devolved on King by operation of law for the reasons given by Sheppard and Connolly JJ. In my view the appeal should be dismissed with costs. | certify that this ' 1S preceding pages are a truo Ui, ©. the reasons for judgment herein cf His Honour Mr. Justice Spender Aft Associate Dated 1.3 Ashe dier lid , fbn ber lidy