QAD Inc v Shepparton Partners Collective Operations Pty Ltd [2021] FCA 615

FEDERAL COURT OF AUSTRALIA

QAD Inc v Shepparton Partners Collective Operations Pty Ltd [2021] FCA 615 File number: NSD 85 of 2020

Judgment of: THAWLEY J

Date of judgment: 8 June 2021

Catchwords: INTELLECTUAL PROPERTY – infringement of copyright in enterprise resource planning software by new business owner – licensor of software required fee as condition of consent to transfer licence agreement to new business owner – fee not paid – whether implied licence to use software – applicants gave respondent permission to use software whilst respondent considered software upgrade options – infringement of copyright established from date respondent indicated it would not pay the transfer fee to the applicant – respondent continued using software throughout the course of proceedings and during hearing – non-pecuniary relief and compensatory and additional damages ordered INTELLECTUAL PROPERTY – cross-claim against previous business owners – alleged failure to use "best endeavours" to secure transfer of licence agreement and alleged failure to comply with obligations under business purchase agreement to secure benefit of and rights under licence agreement – business seller's indemnity against loss suffered as a result of failure to comply with obligations under business purchase agreement and licence agreement – seller guarantor's indemnity against loss and damage suffered as a result of seller's breach of business purchase agreement – principles of construction of contracts – cross-claim dismissed

Legislation: Copyright Act 1968 (Cth) ss 10, 14, 31, 36, 37, 115 Explanatory Memorandum, US Free Trade Agreement Implementation Bill 2004 (Cth)