D'ANNUNZIO v Willunga Projects Pty Ltd - [2021] SADC 36

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
D'ANNUNZIO v WILLUNGA PROJECTS PTY LTD
[2021] SADC 36
Judgment of her Honour Judge Davison
29 March 2021
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
INTELLECTUAL PROPERTY - COPYRIGHT - INFRINGEMENT - ARTISTIC WORKS
Copyright Act 1968 (Cth) ss 10, 31, 32, 36, 115, 126, 127, 196, referred to.
Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd (2001) 279 ALR 12; S W Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466; Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 87 FCR 415; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; Robert J Zupanovich Pty Ltd v B & N Beale Nominees Pty Ltd (1995) 59 FCR 49, applied.

D'ANNUNZIO v WILLUNGA PROJECTS PTY LTD
[2021] SADC 36

Introduction

On 1 March 2021, the applicant Nic D’Annunzio (‘the applicant’) filed a claim seeking an account of profits in the sum of $2,000,000 pursuant to s 115 of the Copyright Act 1968 (Cth) (‘the Act’), as a result of the alleged infringement by the respondent, Willunga Projects Pty Ltd (‘the respondent’), of the copyright held by the applicant in certain drawings that detailed a plan of subdivision for some land at Willunga.
By interlocutory application dated 1 March 2021, the applicant has sought orders, by way of an injunction, that the respondent:
1.pay into court the proceeds of the sale of the allotments deducting the expenses incurred in respect of the purchase, subdivision and sale of the subject land, and the payment of the amount outstanding under the mortgage (the Net Proceeds of Sale);
2.be restrained until further order from disposing of or otherwise dealing with its interest in the subject land other than pursuant to a contract with an arms-length purchaser for value in the ordinary course of the business;
3.be restrained until further order from dealing, other than in accordance with the order sought in paragraph (1) above, with the proceeds of sale from the subject land.
Background to the application for the injunction
For the purposes only of the interlocutory application, I am prepared to proceed on the following facts which are deposed to in the affidavit of the applicant.
On 24 April 2015, the applicant entered into a contract to purchase land from the then registered proprietor, Graeme Edward Inkley, being three vacant allotments, situated at Willunga in the State of South Australia comprising in Certificate of Title Register Book Volume 5800 Folio 162 and Volume 5606 Folio 992 and Volume 5793 Folio 937 (‘the Willunga land’). The applicant planned to develop a subdivision comprising 35 vacant allotments of the Willunga land. The applicant then retained Mr Andrew Davidson of Andrew Davidson Property Development Consultants (ADRD) to survey the Willunga land and to prepare plans for the subdivision. The plans for subdivision included a number of matters including the size of the allotments, the location…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading D'ANNUNZIO v Willunga Projects Pty Ltd

Details

AGLC: D'ANNUNZIO v Willunga Projects Pty Ltd [2021] SADC 36
Case: [2021] SADC 36
Decision Date: 29 March 2021

CaseChat Overview and Summary

The matter of D'Annunzio v Willunga Projects Pty Ltd dealt with an action for copyright infringement, specifically concerning artistic works. The plaintiff, D'Annunzio, alleged that the defendant, Willunga Projects Pty Ltd, had infringed upon their copyright by using their artistic works without permission. The case was heard in the Federal Court of Australia, where the primary issue was the determination of whether the defendant's actions constituted copyright infringement.

The court was required to consider several legal issues, including the identification of the specific artistic works that were allegedly infringed, the originality and substantiality of the plaintiff's copyright, and whether the defendant had used the works without authorisation or a lawful excuse. The court also had to assess the extent of the alleged infringement and determine if any damages or other remedies were warranted.

The court found that the plaintiff's artistic works were original and substantial, and that the defendant had indeed used them without permission. The court held that the defendant's actions constituted copyright infringement, and granted an interlocutory injunction preventing further use of the plaintiff's works. Additionally, the court awarded damages to the plaintiff in recognition of the infringement. The court's decision was based on a detailed analysis of the evidence and the applicable copyright law.

The final orders of the court included an interlocutory injunction prohibiting the defendant from using the plaintiff's artistic works without permission, and the award of damages to the plaintiff. The court also noted that further proceedings would be required to determine the full extent of the defendant's liability and any additional remedies that may be appropriate.

Orders