Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 3) [2013] FCA 410

FEDERAL COURT OF AUSTRALIA

Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 3) [2013] FCA 410 Citation: Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 3) [2013] FCA 410

Parties: TAMAWOOD LIMITED (ACN 010 954 499) v HABITARE DEVELOPMENTS PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 122 935 497), BLOOMER CONSTRUCTIONS (QLD) PTY LTD (ACN 071 344 100), PETER FREDERICK O'MARA, DAVID GAVIN JOHNSON, WAYNE NORMAN BLOOMER, HABITARE PTY LTD (ACN 098 209 495), EIGHT MARCH PTY LTD (ACN 099 315 787) (AS TRUSTEE OF THE EIGHT MARCH DISCRETIONARY TRUST), FIRST PRIORITY DEVELOPMENTS PTY LTD (ACN 098 329 465) (AS TRUSTEE OF THE FIRST PRIORITY DISCRETIONARY TRUST) and MONDO ARCHITECTS PTY LTD (ACN 085 992 990)

File number: NSD 2504 of 2007

Judge: COLLIER J

Date of judgment: 7 May 2013

Catchwords: COPYRIGHT – copyright in plans and drawings of project homes – plans for project homes granted development approval – whether licence granted to developer to use approved plans once relationship broke down with copyright owner – whether licence granted to developer to use plans for purposes of development approval – whether licence bare or contractual – scope of licence – whether revocable at will – no fee charged for design of plans on understanding that copyright owner would be builder of project homes – whether infringement of copyright – whether reproduction of plans in whole or substantial part – whether sufficient degree of objective similarity and causal connection between two sets of development plans – quality rather than quantity of similarity – nature of quality which makes something a "substantial part" of copyright work in suit – expert evidence regarding similarity – whether causal connection between plans such that copying has occurred – tendency of project home plans to exhibit similar design features – purpose to make plans "substantially in accordance" with plans previously given development approval by city council – whether inference of copying – whether directors authorised or procured infringement of companies – question of control implicit in authorisation – whether directors had knowledge of or authorised critical decisions regarding infringement taken by employees – whether companies acting pursuant to common design – concurrence in acts causing damage rather than separate acts which by conjoined effect cause damage – purposes of profitable development of project homes and producing architectural plans meeting needs of client – whether innocent infringement of copyright by builder – whether reasonable grounds for suspecting plans infringed copyright – whether put on inquiry – whether damages for flagrant infringement TRADE PRACTICES – Trade Practices Act 1974 (Cth) – whether misleading or deceptive conduct – infringement of copyright insufficient – representation of ownership in housing estates rather than ownership in housing estate plans – whether knowingly concerned in misrepresentation – whether loss or damage suffered