Some IP Whiteboard team members have a heightened interest in house plan cases from prior involvement. The recent case of Solitaire Homes Pty Ltd v Urban Ventures Pty Ltd [2010] FMCA 185 has therefore not escaped our notice.
Put simply, the judgment is a great read. The task before Federal Magistrate Neville was onerous: competing stories, warring parties, and evidentiary problems. Neville FM saw first hand that the principle “my home is my castle” can be expensive to protect, and that the wrath of a client can lead to rash actions and long term regret. Such wrath was … very bluntly … conveyed in the affidavit material.
Let’s start with the outcome. The Applicant, Solitaire Homes, won. The spoils of victory included a declaration in Solitaire’s favour, damages of $10,000, as well as additional damages of $2,500. Sounds good? Well … as Neville FM observed: “… having regard to the number of senior and other counsel involved, the length of the trial, the all-embracing and far-reaching involvement of solicitors, and numerous interlocutory court events, it might be inferred that the combined legal costs are likely to exceed the cost of construction of either or both of the houses in question. … Mr Turcin [the sole director of Solitaire Homes] said in evidence that ‘this house was … to become the signature against my company name.’ To state the obvious, ’principles’ or ‘signature houses’ are costly matters to protect”.
At issue was a “small project-type home”, albeit award-winning, designed for and built by Solitaire. Solitaire took action against a number of Respondents over the building of another home of remarkably similar appearance. The person who commissioned the home, Mr Martins, was held not to infringe. However, the company that drafted the plans for the house, Urban Ventures, was held liable.
The problem arose on 11 January 2005 when Mr Martins received some bad news. Construction of his new home was to commence the next week. But it came to his attention that the house drafted for him by Mr Farrelly (the proprietor of Urban Ventures) did not fit the block. After Mr Martins recounted this news to Mr Farrelly “in some brief, colourful detail”, Mr Farrelly said he would come up with a new design.
And he did. A two storey concept, which was of some surprise to Mr Martins given all previous concepts were single storey. As Neville FM concluded, when confronted by an irate client in the shape of Mr Martins, who was understandably complaining about a significant and fundamental error in the plans for his house, the construction of which he was wanting to commence quickly, Mr Farrelly took the expedient course of using the basic design of the Solitaire house.
And Mr Martins’ affidavit did indicate he was plain speaking. Particularly when he found out the matter was going to court. He deposed that, in response to his question to Mr Farrelly “What’s going on”, Mr Farrelly said: “I know, it’s bulls..t. There’s a few similarities on the outside, but the internal layout is completely different, so how can that be copyright.” Mr Martins: “Jaime, I’ve seen the photos they sent us. The front of the home in Gungahlin is f…ing similar to the one you drew plans for in Dunlop, almost the same. Did you draw those plans or did they?” Mr Farrelly: “They’re not copied plans”. Mr Martins: “I hope not, I really do”.
Mr Martins did not own a television. This persuaded Neville FM he was an innocent party. Why? Because the infringing design had a home theatre in the upper storey. Mr Martins had made the “querulous response”, Neville FM observed, “not unreasonably”: “Why would someone who did not own a TV give instructions to someone to draw plans for a house in which he plans to live and require that there be a home theatre?”.
Could things get worse for Mr Farrelly? Well, he wasn’t helped by his decision to inspect another Solitaire display home – whilst the litigation was on foot – using a false name in the attendance book at the display home. He later acknowledged that his visit “may not have been the smartest thing to do”.
