Summit Building Services v Baxter - [2020] NZHC 143

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-794

[2020] NZHC 143

BETWEEN
SUMMIT BUILDING SERVICES

Appellant

AND

VICKI JILL BAXTER AND LANCE OWEN BAXTER

Respondents

Hearing: 6 November 2019

Appearances:

M G Keall for Appellant Respondents in person

Judgment:

12 February 2020

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 12 February 2020 at 12:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Fryers Joyce, Auckland

SUMMIT BUILDING SERVICES v BAXTER [2020] NZHC 143 [12 February 2020]

Introduction

[1] The appellant, Summit Building Services Ltd (Summit), designs and builds houses. In 2012, Mr and Mrs Baxter (the respondents), decided to build a home for their retirement at Kilbryde Crescent, Pokeno. They approached Summit with a view to possibly engaging it on their project. Between November 2012 and March 2013, Summit prepared and provided the respondents with six sets of building plans.

[2] On 22 March 2013, Mrs Baxter notified Summit that she and her husband had decided to proceed with another builder, Grigor Construction Ltd (Grigor). The final Grigor building plans1 were all but identical to the final Summit building plans.2

[3] In November 2018, the appellant’s claim was heard in the District Court at Hamilton.3 The appellant sought damages of not less than $74,043 on the grounds of breach of oral contract, equitable estoppel, and breach of copyright. Judge A A Sinclair dismissed each claim and found the respondents entitled to costs and disbursements.4 As regards the breach of copyright claim, the Judge found that Summit had not established ownership of copyright in the building plans it provided to the respondents.5

[4] Summit appeals the District Court’s determination as to its breach of copyright claim.

Background

[5] On 13 November 2012, Summit provided the respondents with a document entitled “Preconsent Agreement”. The Preconsent Agreement provided that the respondents engaged Summit to:

1      Dated 23 May 2013.
2      Dated 21 February, 28 February, and 5 March 2013.
3      Summit Building Services Ltd v Baxter [2019] NZDC 6162.
4      At [67] and [68].
5      At [59] – [61].

1.Prepare a scheme plan for the home to the design brief, comprising a site plan, floor plan and elevations only, for the provisional cost of
$1,500.

2.Prepare full working drawings ready for Council consent, for the provisional cost of $4,000.

3.Engage a surveyor to undertake a site topography plan/report, for the provisional cost of $2,000.

4.Engage a Geotech Engineer to undertake a site Geotech analysis/report, for the provisional cost of $1,800.

5.Secure Lot 48. This required the respondents to pay $5,000 as a deposit, comprising $2,500 for the home, and $2,500 for the land.

[6]The Preconsent Agreement further provided:

I/we acknowledge that:

[…]

[6] …the plans, specifications, and contract document are the intellectual property and as such are copyright to Summit Homes and at all times remain the property of Summit Homes. These plans and contracts cannot be used by any other builder…

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.

Continue reading Summit Building Services v Baxter

Details

AGLC: Summit Building Services v Baxter [2020] NZHC 143
Case: [2020] NZHC 143
Decision Date: 12 February 2020

CaseChat Overview and Summary

The appellant, Summit Building Services Ltd (Summit), appealed against the District Court's dismissal of its claim for breach of copyright in relation to six sets of building plans it had provided to the respondents, Mr and Mrs Baxter, for their proposed house. The District Court had held that Summit had not established ownership of copyright in the plans, and thus dismissed the claim. The appeal was heard by Paul Davison J in the High Court at Auckland. Summit argued that the District Court had erred in finding that it had not established ownership of copyright in the plans, and that damages would be nominal in any event. Summit submitted that the District Court had failed to consider the evidence that Summit owned the copyright in the plans. Summit also submitted that damages should be assessed by reference to a notional licence fee. The respondents submitted that the plans were not original works, and that they had not copied the plans. The High Court found that Summit had established that copyright subsisted in the plans, and that the respondents had infringed this copyright by authorising Grigor to copy the plans. Summit was thus entitled to recover a notional licence fee of $5,500. The High Court allowed the appeal, and entered judgment for Summit against the respondents in the sum of $5,500.

Orders