Reported Decision:
(2002) 55 IPR 542
New South Wales
Court of Appeal
CITATION: Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263 FILE NUMBER(S): CA 40087/01 HEARING DATE(S): 11/04/02 JUDGMENT DATE:
13 August 2002PARTIES :
Torpey Vander Have Pty Ltd (Appellant)
Mass Constructions Pty Ltd (Respondent)JUDGMENT OF: Spigelman CJ at 1; Young CJ in Eq at 40; Foster AJA at 129
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :3397/98 LOWER COURT
JUDICIAL OFFICER :Garling DCJ and Gibb DCJ
COUNSEL: G B Hall QC and S J Burchett (A)
C J Birch SC and J-J Loofs (R)SOLICITORS: Margiotta (A)
Wehbe & Co (R)CATCHWORDS: ARCHITECTS- Copyright in plans- Licence to construction company- Construction company fails- Mortgagee sells- Purchaser from mortgagee builds using plans- Whether architect can succeed in contract or unjust enrichment against purchaser- Held "No" (Young CJ in Eq dissenting on unjust enrichment)- Whether mortgagee's sale transfers licence to use plans- Held "No". PRACTICE- Amendment sought after expiry of limitation period to raise alternative case in breach of copyright on same facts as existing contract case- Refused by District Court Judge- Allegation that judge influenced by fact that applicant's solicitor an alleged persistent offender against good case management- Whether refusal within judge's discretion- Held "Yes"- Whether judge disqualified- Held "No". (D) LEGISLATION CITED: Copyright Act 1968 (Cth), ss 131B, 196
District Court Rules, Part 17 r4; Part 17(5)CASES CITED: Acohs Pty Ltd v RA Bashford Consulting Pty Ltd (1997) 37 IPR 542
Aerial Advertising Co v Batchelors Peas Ltd (Manchester) [1938] 2 All ER 788
Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88
Bailey (R & A) & Co Pty Ltd v Boccaccio Pty Ltd (1986) 4 NSWLR 701
Beck v Montana Constructions Pty Ltd [1964-5] NSWR 229; 5 FLR 298; 80 WN (NSW) 1578
Bourke v Filmways Australasian Distributors Pty Ltd (Eq 3219/79, Powell J, 9.10.1979)
Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Burns Philp Trustee Co Ltd v Ironside Investments Pty Ltd [1984] 2 Qd R 16
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Daniels v Pynbland (Nos 1 & 2) (1985) 4 BPR 9716
De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99
Devefi Pty Ltd v Mateffy Pearl Nagy Pty Ltd (1993) 113 ALR 225
Fink v Fink (1946) 74 CLR 127
Gay v Johnston (1936) 37 SR (NSW) 454
Gruzman Pty Ltd v Percy Marks Pty Ltd (1989) 16 IPR 87
Independent Grocers Co-Operative Ltd v Noble Lowndes Superannuation Consultants Ltd (1993) 60 SASR 525
McGee v Yeomans [1977] 1 NSWLR 273
Ng v Clyde Securities Ltd [1976] 1 NSWLR 443
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Stevens v Benning 1854) 1 K & J 168; 69 ER 414
Stovin-Bradford v Volpoint [1971] 1 Ch 1007
Wardley Australia v Western Australia (1992) 175…
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Details
- Case
- [2002] NSWCA 263
- Decision Date
CaseChat Overview and Summary
The Supreme Court of New South Wales, Court of Appeal, considered an appeal concerning the use of architectural plans. The appellant, Torpey Vander Have Pty Ltd, an architectural firm, had provided plans to Mass Constructions Pty Ltd under a licence. Mass Constructions subsequently defaulted on its obligations, and its mortgagee, the respondent, sold the property. The purchaser from the mortgagee then proceeded to build using the appellant's plans. The appellant sought to recover from the purchaser, alleging breach of contract or unjust enrichment.
The primary legal issues before the Court were whether the licence granted to Mass Constructions extended to a purchaser from the mortgagee, and whether the appellant could succeed against the purchaser on grounds of contract or unjust enrichment. Additionally, the Court considered whether a District Court judge had erred in refusing an amendment to raise a claim for breach of copyright after the limitation period had expired, and whether the judge's conduct disqualified them from hearing the matter.
The majority of the Court held that the licence to use the plans was personal to Mass Constructions and did not transfer to the purchaser upon the mortgagee's sale. Consequently, the appellant could not succeed in a claim for breach of contract against the purchaser. The majority also found that there was no basis for an unjust enrichment claim against the purchaser, as the benefit derived from the plans was not at the expense of the appellant in a manner that would attract equitable intervention. Regarding the refusal to amend, the Court determined that the District Court judge had acted within their discretion, and there was no evidence to suggest the judge was disqualified from hearing the case.
By majority, the appeals were dismissed with costs.
The primary legal issues before the Court were whether the licence granted to Mass Constructions extended to a purchaser from the mortgagee, and whether the appellant could succeed against the purchaser on grounds of contract or unjust enrichment. Additionally, the Court considered whether a District Court judge had erred in refusing an amendment to raise a claim for breach of copyright after the limitation period had expired, and whether the judge's conduct disqualified them from hearing the matter.
The majority of the Court held that the licence to use the plans was personal to Mass Constructions and did not transfer to the purchaser upon the mortgagee's sale. Consequently, the appellant could not succeed in a claim for breach of contract against the purchaser. The majority also found that there was no basis for an unjust enrichment claim against the purchaser, as the benefit derived from the plans was not at the expense of the appellant in a manner that would attract equitable intervention. Regarding the refusal to amend, the Court determined that the District Court judge had acted within their discretion, and there was no evidence to suggest the judge was disqualified from hearing the case.
By majority, the appeals were dismissed with costs.
Orders
Orders of the court
(By majority) Appeals dismissed with costs.
Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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