Vartzokas Architects Pty Ltd v Nazero Group SA Pty Ltd and Anor (No.2)

Vartzokas Architects Pty Ltd (the applicant) brought proceedings against Nazero Group SA Pty Ltd and another party (the respondents) concerning allegations of copyright infringement. The dispute arose from architectural drawings created by the applicant for a proposed unit development. These drawings were provided to a third party for the inclusion of technical specifications, and the land intended for the development was subsequently sold by an entity related to the developer to a third party. The applicant sought a freezing order in relation to the alleged breach of copyright.

The court was required to determine several legal issues. These included whether the developer held an implied licence to utilise the architectural plans, whether such a licence was transferable to the purchaser of the land, and whether the licence was capable of revocation. The court also considered the relevance of the applicant's outstanding fees to these questions. In relation to the freezing order, the court had to assess whether the applicant had a reasonably arguable case, whether there had been undue delay by the applicant, the potential prejudice to the respondents, whether the applicant had demonstrated candour to the court, and the likely extent of damages.

The court reasoned that an implied licence to use the architectural drawings for the purpose of obtaining planning permission and for the construction of the development would arise from the agreement between the architect and the developer. However, this licence was not intended to be transferable to a subsequent purchaser of the land, particularly where the architect's fees remained unpaid. The court found that the licence was revocable, especially in circumstances where the developer had not fulfilled its contractual obligations. The court also considered the principles governing the grant of a freezing order, including the need for a strong prima facie case and the avoidance of undue prejudice.

The court ultimately dismissed the application for a freezing order. It concluded that the applicant had not established a reasonably arguable case for copyright infringement, nor had it demonstrated the necessary grounds for such an extraordinary remedy. The court found that the applicant had failed to display the requisite candour to the court and that the potential prejudice to the respondents outweighed any perceived benefit to the applicant.