Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd

[2004] FCA 1312

COPYRIGHT – syndicate of two corporations owning development site as to two thirds and one third respectively – architect holder of one half of issued capital of two thirds landowner corporation – architect prepared plans for property development – development consent of Council to building in accordance with plans of architect – before development physically commenced outbreak of dispute between the two corporations – appointment by Supreme Court of trustees for sale – purchase of land for value by unrelated third party corporation – whether architect conferred implied licence of architectural copyright on purchase – complex factual disputes – finding of implied licence of architectural copyright attributable to architect in favour of purchaser

Conveyancing Act 1919 (NSW) s 66G

Real Property Act 1900 (NSW)

Environmental Planning and Assessment Act 1979 (NSW) ss 78A, 81A, 95 and 103

Copyright Act 1968 (Cth) s 10 (definitions of ‘artistic work’ and ‘drawing’), ss 202(1) and (2)

Environmental Planning and Assessment Regulations 1994 (NSW)

Environment Planning and Assessment (Building Code of Australia) Regulation 1999 (NSW)

Environment Planning and Assessment Regulations 2000 (NSW)

Concrete Pty Limited v Parramatta Design & Developments Pty Limited [2004] FCA 169 referred to

Concrete Pty Limited v Parramatta Design & Developments Pty Limited [2004] FCA 293 referred to

Concrete Pty Limited v Parramatta Design & Developments Pty Limited [2004] FCA 483 referred to

Avel Pty Limited v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 cited

Cowan v Abel (1995) 58 FCR 157 cited

Australian Consulting & Training Pty Ltd v Tiltform Pty Ltd [2001] FCA 1072 applied

U & I Global Trading (Australia) Pty Ltd v Tasman-Warajay Pty Ltd (1995) 32 IPR 494 applied

Lido Manufacturing Co Pty Ltd v Meyers & Leslie Pty Ltd (1964) 5 FLR 443 applied

Attorney General of Gambia v N’Jia [1961] AC 617 cited

Ealing Borough Council v Jones [1959] 1 QB 384 cited

Tensing (t/as Apple House Music) v Mucider (1993) 28 IPR 111 cited

Maatsechappij Voor Fondsenbezit v Shell Transport & Trading Co [1923] 2 KB 166 applied

Amalgamated Mining Services Pty Ltd v Warman International Ltd (1988) 19 FCR 324 applied

Beck v Montana Constructions Pty Ltd (1963) 5 FLR 298 applied

Ryde Municipal Council v The Royal Ryde Homes (1970) WN 440 referred to

Auburn Municipal Council v Szabo (1971) 67 LGRA 427 referred to

Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 referred to

Parramatta City Council v Shell Co of Australia Ltd (1972) 2 NSWLR 632 referred to

Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 referred to

House of Pearce Pty Limited v Bankstown City Council [2000] NSWCA 44 referred to

Chanrich Properties Pty Ltd v Baulkham Hills Shire Council [2001] NSWSC 229 referred to

Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17 referred to

Liverpool City Council v Irwin [1977] AC 239 cited

Codelfa Construction Pty Ltd v State…

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Details
Case
[2004] FCA 1312
Decision Date

CaseChat Overview and Summary

In the case of Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, the dispute centred around the alleged agreement between Concrete and Parramatta Design & Developments (PDD) regarding the use of architectural plans for a property development. Concrete claimed that PDD had agreed to act as the builder for a development in Nelson Bay, and that they had paid $27,000 for this agreement. PDD denied any such agreement and argued that Concrete did not have the right to use the plans for the development. The court had to determine whether an agreement was made for PDD to be the builder, and if so, whether this agreement entitled Concrete to use the plans for the development.

The court found that no agreement was made for PDD to act as the builder, and that the only agreement made was for PDD to prepare architectural plans for the development. The court further found that an implied licence existed for the joint venture of Landmark and Toyama to use the plans for the development. PDD argued that this licence could not pass to Concrete, but the court found this argument to be without merit. The court held that the licence extended to any purchaser of the property, including Concrete.

The court further found that PDD had made threats to Concrete, and ordered that PDD be restrained from making any further threats. The court also ordered an enquiry into the quantum of damages sustained by Concrete due to the threats. The court dismissed the cross-claim made by one of the respondents and reserved the issue of costs pending further submissions from the parties.

In summary, the court found that Concrete was entitled to use the architectural plans for the development, and that PDD had made threats to Concrete. The court ordered that PDD be restrained from making any further threats, and that an enquiry be held into the damages sustained by Concrete. The court further dismissed the cross-claim and reserved the issue of costs pending further submissions from the parties.

Orders

Orders of the court

2. Each of the respondents by itself, himself and its or his servants or agents be restrained from making any further threat in the form substantially of the respondents’ threats.

3. There be an enquiry into the quantum of damages sustained by the applicant by reason of the respondents’ threats.

4. The amended cross-claim of the cross-claimant be dismissed.

5. The costs of the proceedings to date be reserved pending:

(i) the receipt of written submissions of the applicant/cross-respondent on the issue of costs, and against whom such orders should be made, within three working days; and

(ii) the receipt of written submissions of the respondents/cross-claimant in reply, on the issue of costs, and against whom such orders should be made, within three working days thereafter.

6. Liberty to apply as to the making of orders as to costs, including as to default in complying with directions as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In any event, given that PDD and/or Mr Fares was to be the builder upon the basis alleged, why the requirement for payment of the $27,000.00 in the first place, Concrete submitted rhetorically, and rightly so, even if all of the supporting documentation put in evidence had been independently verified. Conclusion on the third proposition of legal significance formulated by Concrete Upon the basis of my findings that no agreement was made in September/October 1998 (or indeed at any other time) that PDD and/or Mr Fares (‘PDD’) would be the builder of the Nelson Bay development, whether under a design and construct contract or otherwise and that the only agreement relevantly made was for PDD to prepare architectural plans for the eight unit development, for which it was rewarded by the payment of $27,000.00, it follows that the joint venture of Landmark and Toyama received a licence, implied by the law of copyright, to use the plans of PDD for the purpose of building the fourteen unit development in accordance with the consent of Port Stephens Council granted on 10 May 2000. Moreover whilst not strictly relevant in regard to that principal issue, given my findings of fact, it may be observed that despite the denial by PDD that such a licence had passed to the joint venture, nevertheless in the letter of 10 July 2002 from Landmark to Tangate earlier extracted in these reasons, Landmark (of whom Mr Fares was and still is a director and shareholder) stated, inter alia, that ‘[t]he full size copy of the approved plans… may be collected from our office’. It therefore further follows, on the authority of Beck, Blair, Acohs and Bourke, that a term should be implied by law in the relevant contractual relationship to the effect that PDD’s said corporate clients became entitled to use the relevant architectural plans for the purpose for which they were created. Such a licence, on the authority for instance of Beck, Blair, Ng and Torpey extends in principle to any purchaser of the subject property to use the plans for the purpose of developing the land to which the same relate. As was said by Spigelman CJ in Torpey at 549, ‘[o]n the authority of Beck it would readily be concluded… that such a licence conferred permission to construct the dwellings in accordance with the plans and to transfer the right to do so to a purchaser of the property.’ On that same point, again in Torpey, Young CJ in Eq stated ‘[t]he authorities show that ordinarily the licence is considered as transferable together with the land to which it relates where the particular purpose for which the licence was granted was in connection with the land which was assigned.’ The circumstances that Concrete was a purchaser from trustees for sale acting beneficially on behalf of Landmark and Toyama, albeit appointed by the Supreme Court, can make no difference. Despite this line of authority, the position was taken by PDD from the outset, as has been stated throughout my reasons, that even if a licence could be implied to extend to the joint venture companies, yet on the authority of Torpey, such a licence could not pass to Concrete per medium of the trustees for sale appointed pursuant to s 66G of the Conveyancing Act. It was emphatically submitted by PDD that although no mortgage is here relevantly involved, yet on the facts the present case is ‘on all fours’ with Torpey which, on the further submission of PDD, stands for ‘the principle that an implied licence for copyright must be specifically assigned to subsequent acquirers of the property in title.’ In this context, PDD thereby sought to equate a mortgagee, exercising power of sale upon a mortgagor’s default, to trustees for sale appointed in circumstances of disputing co-owners of land.

Ratio Decidendi

Legal Principle Established

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