Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd [2011] FCA 246

In a judgment handed down on 18 March 2011, Justice Dodds-Streeton of the Federal Court has found that seven of Dennis Family Homes' houses and floor plans copied and reproduced a substantial part of the Barrett Property Group's Seattle and Memphis floor plans and houses. The substantial part of the Barrett works found to have been taken by Dennis was the "alfresco quadrant" comprising the rumpus, family, kitchen and meals areas around a covered alfresco. The subsistence of copyright in the Seattle and Memphis works was initially put in issue by Dennis but ultimately conceded before trial.

The decision follows recent proceedings before the Federal Court and on appeal to the Full Federal Court, in which Metricon Homes and Carlisle Homes were held to have also copied and reproduced the same alfresco quadrant from the Seattle and Memphis designs in their plans and houses.

A question of evidence and fact

After finding for Barrett on the issues of substantial part and objective similarity (accepting the evidence of Barrett's architectural expert), the major issue for Justice Dodds-Streeton was whether copying had occurred. The Dennis designers gave evidence that they had created the designs without any reference to the Barrett works. It was submitted that the similarities between the Barrett and Dennis works were explained by the cost and design constraints imposed on project homes. However her Honour rejected the designers' evidence of independent creation and made adverse findings of credit against them, finding their evidence selective and unreliable. Notwithstanding that Barrett had been unable to establish any specific instance of access by the main Dennis designer to the Barrett works, her Honour inferred access and copying from the facts and circumstances in the case.

A full report on the decision will be published in the next edition of the Davies Collison Cave Law e-mag.