Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 3)  FCA 410
The applicant, Tamawood Limited, sought relief for alleged breach of copyright of its designs for project homes against a developer (Habitare Developments Pty Ltd and Habitare Pty Ltd), a builder (Bloomer Constructions (Qld) Pty Ltd) and an architectural firm (Mondo Architects Pty Ltd). The applicant claimed that the respondents copied its plans named “Torrington” and “Conondale” as well as various other plans.
Mondo, represented by Barry.Nilsson., cross-claimed against both the applicant and Habitare. Mondo’s claim against the applicant was that the “Torrington” plans was, in fact, a copy of Mondo’s plans. Mondo’s claim against Habitare was that Habitare misled and deceived Mondo into believing that the applicant had granted Habitare a licence to use its plans. The matter proceeded to a liability only trial in October 2011 with quantum to be resolved following judgment.
Of the six designs the applicant initially pleaded had been infringed, only two remained in issue by the conclusion of the trial. We convinced the applicant to abandon its claims in respect of the other four designs.
- The nature of the licence granted by the applicant to Habitare.
- Whether Mondo’s plans were substantial reproductions of the “Torrington” plans or vice versa.
- Whether Mondo’s plans were substantial reproductions of the “Conondale” plans.
- Whether Mondo’s downloading of the applicant’s various other plans infringed the applicant’s copyright in those plans.
- Whether Habitare made misrepresentations to Mondo that the applicant had granted Habitare a licence to use its plans for building the townhouses.
The Court did not accept that the applicant would have agreed to grant Habitare a licence to use its drawings without it being engaged as the builder and found that the licence granted by the applicant was a bare licence revocable at will.
The Court was not satisfied that there was evidence of copying by Mondo of the “Conondale” plans due to there being significant differences. The Court was also not persuaded that, in simply downloading copies of the applicant’s plans from the internet, Mondo infringed copyright in those plans.
As for Mondo’s cross-claim against Habitare, the Court found that Habitare falsely represented to Mondo that it was entitled to use the applicant’s plans and awarded Mondo an indemnity from Habitare for any loss and damage it will suffer.
Consistent with our expectations, the Court was satisfied that there was evidence of objective similarity and sufficient access by Mondo to the Torrington plans to support a finding of infringement by Mondo of those plans. Consequent on that finding, Bloomer innocently infringed the applicant’s copyright by building townhouses using that plan. We are comforted by costs-protective offers made to the applicant.
The judgment demonstrates the fine factual distinctions that may prove copyright infringement, particularly in respect of works that may be commonplace. It also serves as a warning to architects and designers to clearly document the creative process leading to plans in which they wish to assert copyright.