Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 3)

In the Federal Court of Australia, Tamawood Limited, a company that produces plans for low-cost project housing in Australia, brought an action against Habitare Developments Pty Ltd, a company involved in the construction of low-cost, intensive housing projects in Brisbane, and others, for the alleged infringement of copyright in housing plans. The dispute centred around whether Habitare had used Tamawood’s plans without authorisation, and if so, whether there was a licence for such use. The case also involved a claim by Mondo, a company engaged by Habitare to develop new plans for which building certification could be obtained, against Tamawood for copyright infringement. The primary legal issues were whether there was a licence for the use of Tamawood’s plans for purposes associated with the Brackenridge and Calamvale sites, the scope of any such licence, and whether the plans developed by Mondo constituted an infringement of copyright. The court also considered whether the infringement was flagrant enough to warrant additional damages under section 115(4) of the Copyright Act. The court found that while a licence had been granted by Tamawood to Habitare for the use of the plans in obtaining development approval, there was no licence for the use of the plans for the actual construction of the housing projects. The court also concluded that the plans developed by Mondo did not constitute an infringement of copyright as there was no substantial reproduction of the original plans. The cross-claim by Mondo against Tamawood for copyright infringement was dismissed. The court reserved costs and granted liberty to apply for further orders.

The reasoning of the court was grounded in the evidence presented regarding the processes in Tamawood for the development of drawings and the exercise of skill, judgment, and labour in their creation. The court found that the Torrington drawings, which were at the heart of the dispute, were original artistic works, and copyright in the Tamawood drawings subsisted in Tamawood. The court also noted that the plans developed by Mondo were not a substantial reproduction of the original plans and did not infringe copyright. In relation to the question of flagrancy, the court found that while the circumstances of the case were serious, they did not reach the level of flagrant conduct necessary to warrant additional damages under section 115(4) of the Copyright Act.