This article is from the Australian Property Journal archive
THE Federal Court of Appeal in Melbourne yesterday dismissed high profile builder Metricon's appeal against a judgment which found it had copied the home designs of an arch rival.
In an embarrassing judgment for Metricon, the Court of Appeal lead by Justices Sundberg, dismissed Metricon’s appeal, with costs, against a decision handed down by Justice Gilmour in November last year in a copyright infringement case brought by Porter Davis Homes.
In its appeal, Metricon stated that Justice Gilmour failed to identify what had been copied in Metricon’s Prada plan from Porter Davis Homes’ Seattle plan.
The Court of Appeal rejected Metricon’s assertions and supported Justice Gilmour’s finding that Metricon’s Prototype 20B, which was a sketch of the Prada plan, “shares a number of features of little inherent significance with the Seattle plan and additionally identifies the intended use of rooms and spaces in a closely comparable way to the Seattle design.”
In November, Justice Gilmour found Metricon’s designer Andrian Popple knew that Prototype 20B was copied from the Seattle 31 and that there was conscious copying of the Seattle 31 design and/or display home as to the alfresco quadrant by Metricon in producing Prototype 20B and in turn the Prada 35.
In addition to copyright infringement findings, Justice Gilmour also criticised Metricon’s managing director Ross Palazzesi and Popple for making certain statements that they knew to be false and made a 50% indemnity of costs order against the company on a number grounds, one being that Metricon made fraudulent allegations.
In its appeal, Metricon sought to change that assertion, but the appeal judges abstain.
Instead, the Court of Appeal said Justice Gilmour’s findings concerning Palazzesi were based in a large measure on “his Honour’s assessment of Mr. Palazzesi’s credibility and also on his Honour’s assessment of the credibility of Metricon witnesses.
“The primary judge was plain the a better position than this appeal court to make these assessments,” Justices Sundberg, Branson and Kenny said.
In the ruling last November, Justice Gilmour found:
• The explanations given by Popple and Bujega that the Prada 35 was a result of modifications to the Gallery 32 design as well as the Eldridge design were false;
• Bugeja deliberately copied the alfresco quadrant from the Seattle 31 despite his denial;
• Palazzesi, in his pre-trial affidavits sought to create the false impression of his close involvement in an independently created design of the Prada 35;
• The explanation by Palazzesi and Popple that the Gallery design was discussed as a basis for producing the Prototype 20A, Prototype 20B and the Prada 35 was an after the fact explanation concocted in order to establish an independent design path; and
• Ultimately in cross-examination, Popple conceded that the other accused homes namely the Tyrell, Streeton and Connolly designs were produced by reference to Prototype 20B and the Prada 35.
“These illustrate a determined effort on the part of the respondents and their witnesses to establish a defence on one of the central issues in the case which they knew to be false. It was left to the forensic efforts of the applicants’ solicitors and counsel and some belated and limited concessions made by Popple and Bugeja during their oral evidence, which led to these attempts to mislead the Court being exposed,” Justice Gilmour said.
Jeff Bujega is the design manager for Metricon and Jason Biasin the general manager of housing for the builder.
The Court also found Metricon had a “wilful disregard of known facts or clearly established law” and made allegations which should never have been made.
And for those actions, Justice Gilmour slapped Metricon heavily in costs.
In reaching the indemnity costs order, Justice Gilmour also found Metricon wasted the courts time and of other parties with “evidence of particular misconduct”.
Justice Gilmour had found a witness for Metricon unreliable which included a finding that he had fabricated some of his evidence to support the Metricon’s case.
Justice Gilmour said had the witness’ conscious and deliberate effort to mislead Court was successful, the Court could have found the case in favour of Metricon.
“It is, relevant in this context, to consider particular facts and findings relating to the evidence, both oral and written given by Bujega, Popple, Palazesi and Biasin who were the key witnesses called by the respondents,” Justice Gilmour added.
This has been a long running legal battle for Porter Davis, which brought proceedings against Metricon in April last year.
Australian Property Journal
