The Full Court has partially allowed Tamawood’s appeal, and denied Habitare’s appeal from Collier J’s findings about copyright infringement.
Tamawood designs and builds homes; Habitare is (or was) a developer. Habitare arranged for Tamawood to design some houses for a development it was working on. The plans were submitted to the local authority for, and received, planning approval. Tamawood and Habitare were unable to agree the basis on which they would go forward. Habitare decided to get Mondo Architects to draw up the building plans to carry the project forward and used Bloomer to build the houses. At first instance, Collier J found some of Mondo’s plans infringed, but others did not.
On appeal, the Full Court upheld Collier J’s ruling that Habitare’s licence to use the plans with planning approval terminated when Habitare decided not to proceed with Tamawood. This was because the basis of the licence was that Tamawood would not charge for preparing the drawings on the understanding it would build the houses. Use (ie., reproduction) of the plans outside those terms was unlicensed.
On appeal, Tamawood also successfully challenged Collier J’s conclusion that its copyright in “Stad 939 Conondale/Dunkeld”:
was not infringed by Mondo Duplex 1:
Two points of interest here. First, the Full Court was unanimous in holding that Collier J had erred by ascertaining whether Mondo Duplex 1 sufficiently resembled Stad 939 Conondale/Dunkeld and then considering whether or not there had been copying. The question of copying needs to be resolved first although, in doing so, the degree of resemblance may lead to an inference of copying.
Secondly, for Jagot and Murphy JJ, the degree of resemblance, Mondo’s access to Tamawood’s plans and the significant difference between Mondo’s plans before that access and after all contributed to a conclusion of copying. Their Honour’s then applied Eagle Homes v Austec to find reproduction of a substantial part on the basis that the copyright work could still be seen in the accused plans. For Jagot and Murphy J the changes in the floor plan were minor. At :
The footprints of the duplexes are identical but for the addition of the patio at the rear of the Mondo Duplex 1 plans. The internal and other external differences all result from two changes – swapping the position of bedroom 1 with bedroom 2 and swapping the position of bedroom 3 with the living/entry space. All changes appear consequential on these two basic changes in location. The changes, however, are minor, in the sense that the overall relationship between the internal spaces and the exterior remain the same. ….
Greenwood J dissented on this point at  – , considering that the layout and traffic flows, shapes and proportions and relationships of the rooms and other spaces were sufficiently different. His Honour considered that the common placement of Beds 1 and 2 and associated wet areas along the external walls of the duplex rather than the party wall was rational and for obvious reason.
Otherwise, the Full Court affirmed her Honour’s ruling at first instance.
Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed)  FCAFC 65