Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton (No. 2) - [2022] QDC 208

DISTRICT COURT OF QUEENSLAND

CITATION:

Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton (No. 2) [2022] QDC 208

PARTIES:

LOOK DESIGN AND DEVELOPMENT PTY LTD

(ACN 130 652 701)

(plaintiff)

v

EDGE DEVELOPMENTS (QLD) PTY LTD

(ACN 163 938 207)

(first defendant)

and
FIONA FLATON and PHILIP FLATON

(second defendants)

FILE NO:

D80 of 2017

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court, Maroochydore

DELIVERED ON:

14 September 2022

DELIVERED AT:

Maroochydore

HEARING DATE:

20 May 2022

JUDGE:

Long SC, DCJ

ORDER:

1. The second defendants are to pay the plaintiff $500.00 as damages for breach of copyright pursuant to s 115(2) of the Copyright Act 1968 (Cth).

2. The second defendants are to pay the plaintiff’s costs of the proceeding, as agreed or assessed on the standard basis, incurred up to and including 16 July 2020.

3. The plaintiff is to pay the second defendant’s costs of the proceeding, as agreed or assessed on the standard basis, incurred thereafter.

CATCHWORDS:

COSTS – Where the plaintiff claimed, inter alia, $40,000 as damages pursuant to s 115(2) and (4) of the Copyright Act 1968 (Cth) – Where the plaintiff’s claim against the second defendants was ultimately limited to $10,000 resultant upon a settlement as between the plaintiff and first defendant – Where the plaintiff was awarded only nominal damages at the substantive hearing as vindication of their title to its property by way of copyright – Where the second defendants made a formal offer to settle dated 16 July 2020 – Where the plaintiff has not obtained an order that is more favourable than that offer – Where an order under rule 361(2) of the Uniform Civil Procedure Rules 1999 (Qld) is appropriate – Where alternatively it would be appropriate to conclude that the same result would be an appropriate recognition of a sense of unreasonableness in the rejection of that offer by the plaintiff

LEGISLATION:

Copyright Act 1968 (Cth) ss 115(2), 115(4),
Uniform Civil Procedure Rules 1999 (Qld) rr 361(2), 681(1)

CASES:

Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1975] 1 All ER 813
Balnaves v Smith [2012] QSC 408
Calderbank v Calderbank [1976] Fam 93
Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton [2022] QDC 116
Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65
Ng v Chong [2005] NSWSC 385
SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323
State of Queensland v Hayes (No 2) [2013] QSC 80 West v Blackgrove [2012] QCA 321

COUNSEL:
M White for the plaintiff

R M De Luchi for the second defendants

SOLICITORS:
Butler McDermott Lawyers for the plaintiff

Robinson Locke Litigation Lawyers for the second defendants

In the substantive proceedings in this matter and on 20 May 2022, the Court published reasons for a conclusion that the plaintiff was entitled to an order that:
“The second defendants are to pay the amount of $500 to the plaintiff, as…

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.

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Details

Case: [2022] QDC 208
Decision Date: 14 September 2022

CaseChat Overview and Summary

The case of Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton (No. 2) involved the plaintiff, Look Design, claiming damages for copyright infringement against the defendants, Edge Developments and Flaton. Look Design sought $40,000 in damages under the Copyright Act 1968 (Cth) and nominal damages for the vindication of their copyright title. The dispute centred around the defendants' alleged infringement of Look Design's copyright in a design. The primary legal issues that the court had to address included the quantum of damages recoverable under the Copyright Act and the appropriateness of costs orders in light of the plaintiff’s settlement with one of the defendants and their failure to secure a more favourable outcome.

The court examined the nature of the plaintiff's claims and the settlement reached with Edge Developments, which reduced the claim against Flaton to $10,000. Despite this, Look Design did not achieve an outcome more favourable than Flaton's settlement offer dated 16 July 2020. The court considered whether an order under rule 36.1(2) of the Uniform Civil Procedure Rules 1999 (Qld) was appropriate, given the plaintiff's failure to secure a better result. It was determined that the plaintiff's conduct in rejecting Flaton's offer was unreasonable, warranting a costs order that recognises this sense of unreasonableness.

In its reasoning, the court awarded nominal damages to Look Design as a vindication of their copyright title. However, the court found that the plaintiff was not entitled to the full amount of damages claimed due to the settlement and their failure to secure a better outcome. The court ordered Flaton to pay Look Design $500 as damages for breach of copyright under s 115(2) of the Copyright Act 1968 (Cth). Additionally, Flaton was ordered to pay Look Design's costs up to and including 16 July 2020, while Look Design was ordered to pay Flaton's costs incurred thereafter. This outcome reflected the court's view that Look Design's conduct in rejecting Flaton's settlement offer was unreasonable.

Orders

Orders of the court

1. The second defendants are to pay the plaintiff $500.00 as damages for breach of copyright pursuant to s 115(2) of the Copyright Act 1968 (Cth).

2. The second defendants are to pay the plaintiff’s costs of the proceeding, as agreed or assessed on the standard basis, incurred up to and including 16 July 2020.

3. The plaintiff is to pay the second defendant’s costs of the proceeding, as agreed or assessed on the standard basis, incurred thereafter.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton (No. 2) [2022] QDC 208
PARTIES:	LOOK DESIGN AND DEVELOPMENT PTY LTD (ACN 130 652 701) (plaintiff) v EDGE DEVELOPMENTS (QLD) PTY LTD (ACN 163 938 207) (first defendant) and FIONA FLATON and PHILIP FLATON (second defendants)
FILE NO:	D80 of 2017
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court, Maroochydore
DELIVERED ON:	14 September 2022
DELIVERED AT:	Maroochydore
HEARING DATE:	20 May 2022
JUDGE:	Long SC, DCJ
ORDER:	1. The second defendants are to pay the plaintiff $500.00 as damages for breach of copyright pursuant to s 115(2) of the *Copyright Act 1968* (Cth). 2. The second defendants are to pay the plaintiff’s costs of the proceeding, as agreed or assessed on the standard basis, incurred up to and including 16 July 2020. 3. The plaintiff is to pay the second defendant’s costs of the proceeding, as agreed or assessed on the standard basis, incurred thereafter.
CATCHWORDS:	COSTS – Where the plaintiff claimed, inter alia, $40,000 as damages pursuant to s 115(2) and (4) of the Copyright Act 1968 (Cth) – Where the plaintiff’s claim against the second defendants was ultimately limited to $10,000 resultant upon a settlement as between the plaintiff and first defendant – Where the plaintiff was awarded only nominal damages at the substantive hearing as vindication of their title to its property by way of copyright – Where the second defendants made a formal offer to settle dated 16 July 2020 – Where the plaintiff has not obtained an order that is more favourable than that offer – Where an order under rule 361(2) of the Uniform Civil Procedure Rules 1999 (Qld) is appropriate – Where alternatively it would be appropriate to conclude that the same result would be an appropriate recognition of a sense of unreasonableness in the rejection of that offer by the plaintiff
LEGISLATION:	Copyright Act 1968 (Cth) ss 115(2), 115(4), Uniform Civil Procedure Rules 1999 (Qld) rr 361(2), 681(1)
CASES:	Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1975] 1 All ER 813 Balnaves v Smith [2012] QSC 408 Calderbank v Calderbank [1976] Fam 93 Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton [2022] QDC 116 Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65 Ng v Chong [2005] NSWSC 385 SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323 State of Queensland v Hayes (No 2) [2013] QSC 80 West v Blackgrove [2012] QCA 321
COUNSEL:	M White for the plaintiff R M De Luchi for the second defendants
SOLICITORS:	Butler McDermott Lawyers for the plaintiff Robinson Locke Litigation Lawyers for the second defendants