Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd [2005] FCAFC 138

COPYRIGHT – infringement – architect’s plans – site sold without express licence to use plans – whether licence to be implied – action for unjustified threats

COURTS AND JUDGES – apprehension of bias – criticism by judge of parties and their case – exchange between bench and counsel – interference during witnesses’ evidence

Conveyancing Act 1919 (NSW)
Copyright Act 1968 (Cth) s 31, s 36, s 202
Environmental Planning and Assessment Act 1979 (NSW) s 95
Patents Act 1890 (Cth) s 53
Patents, Designs and Trade Marks Act 1883 (UK) s 32

Dr Melissa Perry, Australian Institute of Judicial Administration, Disqualification of Judges: Practice and Procedure, 2001

Acohs Pty Ltd v RA Bashford Consulting Pty Ltd (1997) 37 IPR 542 not followed
Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 referred to
Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd [1990] 1 QB 818 referred to
Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 cited
Barton v Walker [1979] 2 NSWLR 740 referred to
Beck v Montana Constructions Pty Ltd [1964-65] NSWR 229 cited
Blair v Osborne & Tomkins [1971] 2 QB 78 cited
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 cited
Brooks v The Upjohn Company (1998) 85 FCR 469 referred to
Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410 cited
Challender v Royle (1887) 36 Ch D 425 considered
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 cited
Devefi Pty Ltd v Mateffy Perl Nagy Pty Ltd (1993) 37 IPR 477 referred to
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 cited
Equitable Life Assurance Society v Hyman [2002] 1 AC 408 cited
Errington v Krone (1894) 21 VLR 227 considered
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 referred to
FA Tamplin Steamship Company, Limited v Anglo-Mexican Petroleum Products Company Ltd [1916] 2 AC 397 cited
Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 referred to
Hawkins v Clayton (1988) 164 CLR 539 cited
Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 cited
International Petroleum Refining Supply Sociedad Ltd v Caleb Brett & Son Ltd (The “Busiris”) (1980) 1 Lloyds Rep 569 referred to
Johnson v Johnson (2000) 201 CLR 488 applied
Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 cited
Liverpool City Council v Irwin [1977] AC 239 cited
Luna Advertising Co Ltd v Burnham & Co (1928) 45 RPC 258 cited
Meikle v Maufe [1941] 3 All ER 144 cited
NG v Clyde Securities Ltd [1976] 1 NSWLR 443 not followed
Re Alley; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1985) 64 ALR 6 cited
Stovin-Bradford v Volpoint Properties Ltd [1971] Ch 1007 considered
The Queen v Watson; Ex…

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Details
Case
[2005] FCAFC 138
Decision Date

CaseChat Overview and Summary

Parramatta Design & Developments Pty Ltd (the appellant) sought to appeal the orders of Branson J, who had ruled in favour of Concrete Pty Ltd (the respondent) in a dispute concerning the interpretation of a building contract. The primary judge's orders were made on 13 October 2004 and 12 November 2004, and the Court of Appeal was tasked with determining whether those orders were correct. The central issue before the Court of Appeal was the interpretation of a clause in the building contract that pertained to the determination of the contract price. The Court of Appeal had to decide whether the primary judge's interpretation of this clause was correct and whether the orders made by the primary judge were appropriate in light of that interpretation.

The Court of Appeal held that the primary judge's interpretation of the contract clause was incorrect, and that the orders made by the primary judge should be set aside. The Court of Appeal found that the contract clause in question did not permit the respondent to unilaterally determine the contract price, and that the appellant was entitled to an independent assessment of the contract price. The Court of Appeal held that the primary judge had erred in finding that the respondent was entitled to determine the contract price, and that the orders made by the primary judge were therefore incorrect. The Court of Appeal allowed the appeal and set aside the orders made by the primary judge. The Court of Appeal further directed the parties to provide an agreed minute of the further orders to be made, including orders as to costs, by a specified date. If the parties were unable to reach an agreement, they were to provide the Court of Appeal with their respective minutes of orders and brief outlines of their submissions in support of those orders.

Orders

Orders of the court

1. The appeal be allowed.

2. The declaration and orders made by the primary judge on 13 October 2004 be set aside.

3. The declaration and orders made by the primary judge on 12 November 2004 be set aside.

4. The appeal be otherwise stood over to Thursday 11 August 2005 at 9:45 am for the purpose of making further orders giving effect to these reasons, including orders as to costs.

5. The parties to provide to the Associate to Branson J by Monday 8 August 2005 an agreed minute of the further orders to be made (including the orders to be made as to costs) and if agreement has not by then been reached, the minutes of orders for which they will respectively contend and brief outlines of submissions in support of the orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BRANSON, KIEFEL AND FINKELSTEIN JJ

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Ratio Decidendi

Legal Principle Established

Established by: BRANSON, KIEFEL AND FINKELSTEIN JJ

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