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Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton (No. 2)[2022] QDC 208

Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton (No. 2)[2022] QDC 208

DISTRICT COURT OF QUEENSLAND

CITATION:

Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton (No. 2) [2022] QDC 208

PARTIES:

LOOK DESIGN AND DEVELOPMENT PTY LTD

(ACN 130 652 701)

(plaintiff)

v

EDGE DEVELOPMENTS (QLD) PTY LTD

(ACN 163 938 207)

(first defendant)

and

FIONA FLATON and PHILIP FLATON

(second defendants)

FILE NO:

D80 of 2017

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court, Maroochydore

DELIVERED ON:

14 September 2022

DELIVERED AT:

Maroochydore

HEARING DATE:

20 May 2022

JUDGE:

Long SC, DCJ

ORDER:

1. The second defendants are to pay the plaintiff $500.00 as damages for breach of copyright pursuant to s 115(2) of the Copyright Act 1968 (Cth).

2. The second defendants are to pay the plaintiff’s costs of the proceeding, as agreed or assessed on the standard basis, incurred up to and including 16 July 2020.

3. The plaintiff is to pay the second defendant’s costs of the proceeding, as agreed or assessed on the standard basis, incurred thereafter.

CATCHWORDS:

COSTS – Where the plaintiff claimed, inter alia, $40,000 as damages pursuant to s 115(2) and (4) of the Copyright Act 1968 (Cth) – Where the plaintiff’s claim against the second defendants was ultimately limited to $10,000 resultant upon a settlement as between the plaintiff and first defendant – Where the plaintiff was awarded only nominal damages at the substantive hearing as vindication of their title to its property by way of copyright – Where the second defendants made a formal offer to settle dated 16 July 2020 – Where the plaintiff has not obtained an order that is more favourable than that offer – Where an order under rule 361(2) of the Uniform Civil Procedure Rules 1999 (Qld) is appropriate – Where alternatively it would be appropriate to conclude that the same result would be an appropriate recognition of a sense of unreasonableness in the rejection of that offer by the plaintiff

LEGISLATION:

Copyright Act 1968 (Cth) ss 115(2), 115(4),
Uniform Civil Procedure Rules 1999 (Qld) rr 361(2), 681(1)

CASES:

Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1975] 1 All ER 813

Balnaves v Smith [2012] QSC 408

Calderbank v Calderbank [1976] Fam 93

Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton [2022] QDC 116

Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65

Ng v Chong [2005] NSWSC 385

SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323

State of Queensland v Hayes (No 2) [2013] QSC 80

West v Blackgrove [2012] QCA 321

COUNSEL:

M White for the plaintiff

R M De Luchi for the second defendants

SOLICITORS:

Butler McDermott Lawyers for the plaintiff

Robinson Locke Litigation Lawyers for the second defendants

  1. [1]
    In the substantive proceedings in this matter and on 20 May 2022, the Court published reasons for a conclusion that the plaintiff was entitled to an order that:

“The second defendants are to pay the amount of $500 to the plaintiff, as damages pursuant to s 115(2) of the Copyright Act 1968 (Cth).”

As noted at the conclusion of those reasons:

“Otherwise, the parties will be given an opportunity to be heard as to the form of final orders, including as to interest and costs.”

  1. [2]
    As a consequence, directions were made for the filing of materials and written submissions, by which it has been clarified that:
    1. (a)
      it is appropriate that the order foreshadowed in the reasons published on 20 May 2022, be made as the only substantive order, with the plaintiff accepting that the finding as to the infringement of its copyright, upon which that order is premised, is such that it does not press its claim for declaratory relief;
    2. (b)
      the plaintiff does not further press any claim for interest; and
    3. (c)
      the plaintiff does press for an order that the second defendants pay its costs of the proceeding, as agreed or assessed on the standard basis.
  2. [3]
    Such further order as to the costs of the proceeding is opposed by the second defendants, who themselves contend for various alternative orders, dependent upon the Court’s view as to the effect of the outcome of the proceedings, in the context of various prior offers as to settlement of those proceedings.
  3. [4]
    It is convenient to first note some broad history of the proceeding:
    1. (a)
      It was commenced with the filing of a claim and statement of claim, on 29 June 2017, for relief against both the first and second defendants, broadly in terms of:
      1. declaration of copyright in the plaintiff’s building plans;
      2. pursuant to s 115(2) of the Copyright Act 1968 (Cth) (“Copyright Act”), an account of profits in the sum of $40,000 or alternatively, damages for infringement of copyright in the same amount;
      3. additional damages (pursuant to s 115(4) of the Copyright Act) in the sum of $10,000;
      4. interest; and
      5. costs.
    2. (b)
      On 8 May 2018, a notice of discontinuance was filed as against the first defendant, which was subsequently explained at the trial as being consequential to a settlement of that claim, with the payment of a sum of $30,000 to the plaintiff.
    3. (c)
      The pleadings closed with the filing of an amended reply on 21 February 2020.[1]
    4. (d)
      On 12 May 2020, trial dates were requested and allocated as 25 and 26 August 2020.
  4. [5]
    It is to be noted as common ground, that although the claim for an account of profits effectively fell away with the settlement of the claim against the first defendant, it was not until the commencement of the trial on 25 August 2020, that there was express acknowledgment by the plaintiff that there should be a set-off of the amount paid by the first defendant and that its claim for damages against the second defendant was effectively limited to an amount of $10,000.00.[2]
  5. [6]
    Also in broad terms, it may be noted that the essential conclusions reached in determination of the claim against the second defendants, were that:
    1. (a)
      the plaintiff is the owner of the copyright subsisting in the Revision B Plan;[3]
    2. (b)
      there was infringement of the copyright subsisting in the plaintiff’s Revision B plan, carried out by the first defendant in its capacity as the agent of the second defendants, both in terms of the house plans prepared by the first defendant in reliance on the Revision B Plan, at the request of the second defendants, and in the construction of the house for the second defendants in accordance with those plans prepared by the first defendant;[4]
    3. (c)
      the second defendants provided the plaintiff’s Revision B Plan to the first defendant for the purpose and in authorisation of the substantial reproduction by the first defendant of that plan;[5]
    4. (d)
      the plaintiff’s claim for loss of a commercial opportunity to build the house for the second defendants (as advanced as an appropriate measure of damages pursuant to s 115(2) of the Copyright Act) primarily failed on the basis of not establishing causation, in terms of the likelihood that the second defendants would have contracted with the plaintiff for the construction of their house.[6] It was also found that the approach taken by the plaintiff to valuation of any such opportunity was flawed in terms of seeking to recover any further damages from the second defendants, over and above the amount of $30,000, it was accepted was to be effectively set-off;[7]
    5. (e)
      alternative means of measuring any loss of the plaintiff was inappropriate:
      1. as to any measure consistent with the market value of the Revision B Plan, because no evidence was led as to such market value; and
      2. any measure consistent with a fair licence fee for the use of the Revision B Plan, due to the plaintiff’s unequivocal evidence that it had never and would never so licence its plans for use by another building company.[8]

Accordingly, the appropriate approach, in the circumstances, was to allow an amount “at least by way of nominal damages and more particularly by way of vindication of the plaintiff’s title to its property by way of copyright in the sum of $500 pursuant to s 115(2) of the Copyright Act 1968 (Cth)”;[9] and

  1. (f)
    no award of additional damages pursuant to s 115(4) of the Copyright Act was appropriate in circumstances where the evidence was insufficiently supportive of the knowledge of wrongdoing on the part of the second defendants or their taking unfair advantage of the work of the plaintiff and therefore as to any flagrancy of their infringement.[10]
  1. [7]
    It is then convenient to note that in support of the various contentions made as to an appropriate order as to costs, the Court has been informed as to the following communications of the parties:
    1. (a)
      by letter dated 28 November 2016 and in the context of notation of an “understand[ing] that the likely amount of the cost of the schematic drawing to be $600.00”, on behalf of the second defendants, there was an:

“Offer, expressed to remain open for seven days,:

‘… to pay your client the amount of $601.00 within seven (7) days of the parties executing a formal deed of settlement, prepared by our firm, for full and final settlement of your client’s Claim, including any alleged claim against Edge.’”;[11]

  1. (b)
    by letter dated 16 July 2020, a “formal offer” was made on behalf of the second defendants, expressed to be “made in accordance with Chapter 9, Part 5 of the Uniform Civil Procedural Rules (1999)” and expressed as remaining open for seven days after service of the offer, in the following terms:

“The second defendants hereby offer to settle the above proceeding with the plaintiff on the following terms:

  1. the Second Defendants will pay to the Plaintiff the amount of $5,000.00 (‘the Settlement Sum’);
  1. payment of the amount stated in paragraph 1 of this offer is due within fourteen (14) days of the Plaintiff’s communicated acceptance of the Offer;
  1. within seven (7) days of receipt of the Settlement Sum in cleared funds, the Plaintiff is to discontinue this proceeding against the Second Defendants; and
  1. payment of the Settlement Sum by the Second Defendants will constitute full and final settlement of any and all claims against them in respect to the matters subject of the Claim in proceeding D80/17.”;[12]
  1. (c)
    by letter dated 18 August 2020, the solicitors for the plaintiff wrote, acknowledging that the offer in the letter dated 16 July 2020 had lapsed but making an offer, expressed to be “pursuant to the principles identified in Calderbank v Calderbank [1975] 3 All ER 333”[13] and open for six days until 24 August 2022, in terms of:

“… an offer to resolve the claim on the basis that your clients pay our clients:

  1. $10,000 on account of our client’s substantive claim; and
  1. our client’s costs of and incidental to these proceedings, to be assessed on the standard basis pursuant to Schedule 1 to the Uniform Civil Procedure Rules 1999 (Qld).”;[14] and
  1. (d)
    by letter dated 21 August 2020, the solicitors for the second defendants responded with the following reasons for rejecting the plaintiff’s offer in the letter of 18 August 2020:

“1. your client’s offer has been made less than one (1) week before trial;

  1. as a result, our clients have incurred significant costs in preparing for trial;
  1. our clients’ costs have been incurred in circumstances where your client has been on notice for two years that its claim against our clients lacks merit and should have been withdrawn;
  1. further, and in any event, your client is not at law entitled to damages for the full amount claimed in circumstances where it has already obtained a sizeable settlement from the First Defendant in respect to the same alleged loss your client is pursuing our clients for recovery of.  This was communicated to you at the time of that settlement.”

But this included the following further offer, also expressed to be made pursuant to the “Calderbank” principles and “on purely commercial terms only”:

“… to settle the proceeding as follows:

  1. both parties agree to discontinue the proceeding with each party bearing its own costs; and
  1. discontinuance of the proceeding will constitute full and final satisfaction of all claims in respect to the proceeding and the plans subject of the proceeding.”[15]
  1. [8]
    Only the offer of the second defendants, dated 16 July 2020, seeks to engage the specific provisions of the Uniform Civil Procedure Rules 1999 (“UCPR”) and therefore prospectively the engagement of UCPR 361, which provides:

361 Costs if offer by defendant

  1. (1)
    This rule applies if –
  1. (a)
    the defendant makes an offer that is not accepted by the plaintiff and the plaintiff does not obtain an order that is more favourable to the plaintiff than the offer; and
  2. (b)
    the court is satisfied that the defendant was at all material times willing and able to carry out what was proposed in the offer.
  1. (2)
    Unless a party shows another order for costs is appropriate in the circumstances, the court must –
  1. (a)
    order the defendant to pay the plaintiff’s costs, calculated on the standard basis, up to and including the day of service of the offer; and
  2. (b)
    order the plaintiff to pay the defendant’s costs, calculated on the standard basis, after the day of service of the offer.
  1. (3)
    However, if the defendant’s offer is served on the first day or a later day of the trial or hearing of the proceeding then, unless the court otherwise orders –
  1. (a)
    the plaintiff is entitled to costs on the standard basis to the opening of the court on the next day of the trial; and
  2. (b)
    the defendant is entitled to the defendant’s costs incurred after the opening o the court on that day on the indemnity basis.
  1. (4)
    If the defendant makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.
  1. [9]
    Otherwise and in respect of the offers expressed to be made in accordance with “Calderbank” principles, such were conveniently summarised by Bond J in SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2):[16]

“[10] First, the usual rule is that where the Court orders the costs of one party to litigation to be paid by another party, the order is for assessment of those costs on the standard basis.

[11] Second, the Court will depart from the usual rule where the circumstances of the case warrant that course.

[12]  Third, one feature which may justify a departure from the usual rule is the rejection of a Calderbank offer to compromise. However, it is wrong to think that an offeree’s rejection of a Calderbank offer gives rise to a presumption that the offeree should pay the offeror’s costs on an indemnity basis if the offeree obtains a less favourable result than contained in the offer. Rather, the correct approach is to consider whether the rejection of the Calderbank offer, in all the circumstances, justifies a departure from the usual rule.

[13]  Fourth, the balance between the competing policy considerations of, on the one hand, appropriately encouraging settlement and, on the other, not discouraging potential litigants from bringing their disputes to the courts, is found by applying a test of “reasonableness”. The policy rationale for requiring the offeree to indemnify the offeror for costs incurred after the offeree’s unreasonable rejection of an offer is that, from the time of the unreasonable rejection, notionally the real cause and occasion of the litigation is the unreasonable attitude adopted by the offeree.

[14]  Fifth, deciding the critical question of whether the offeree’s rejection of the offer is unreasonable in all the circumstances will always involve matters of judgment and impression. However, the discretion as to costs must be exercised judicially and is subject to review in accordance with the principles set out in House v The King (1936) 55 CLR 499 at 505. Without being exhaustive concerning the considerations which should be taken into account, a court should ordinarily have regard to at least the following matters:

  1. (a)
    the stage of the proceeding at which the offer was received;
  2. (b)
    the time allowed to the offeree to consider the offer;
  3. (c)
    the extent of the compromise offered;
  4. (d)
    the offeree’s prospects of success, assessed as at the date of the offer;
  5. (e)
    the clarity with which the terms of the offer were expressed; and
  6. (f)
    whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.” (emphasis original, citations omitted).
  1. [10]
    The plaintiff seeks to rely upon the ordinary principle that costs follow the event of its successful vindication of its rights in this proceeding.[17]  Despite the recovery of damages in only a nominal sum, emphasis is placed upon the establishment of the plaintiff’s legal rights in respect of its plans, as the fundamental aim successfully achieved in the proceeding.[18]
  2. [11]
    The difficulty is not in the proposition but rather the application of it as a determinative factor, in circumstances where:
    1. (a)
      The plaintiff reached a settlement with its competitor and main protagonist in the breach of its copyright and therefore the defendant who may have been seen as a primary vehicle for seeking vindication of its rights;[19] and
    2. (b)
      The proceedings against the second defendants were pursued with a clear, but miscalculated, aim of recovery of a substantial sum of damages, with only belated recognition of necessity to account for the plaintiff’s recovery from the first defendant and characterised by failure to establish the claim for damages, as was pursued at some length in the trial.
  3. [12]
    On the other hand, for the second defendants, reliance is placed upon the lack of success of the plaintiff in its claim for damages and recovery of only a nominal sum and particularly the first and second of their offers to settle.  Various alternative contentions are made as to the form of order sought but it extends to a contention that an outcome might be that the plaintiff pays the entirety of the second defendant’s costs of the proceeding. Reliance is placed upon the observations in West v Blackgrove,[20] in recognition of circumstances which may warrant the implicit implication in UCPR  681(1) of discretion to depart from the generally stated position, where appropriate. And reference is also made to observations in State of Queensland v Hayes (No 2),[21] as to allowance for such departure having regard to a “Calderbank offer”, being based in considerations of public policy and private interest in encouragement of offers to settle civil litigation
  4. [13]
    In relation to their position as to the actual success of the proceeding, the second defendant’s point to the following summary of the applicable principles, in Motium Pty Ltd v Arrow Electronics Australia Pty Ltd;[22]

“[6] Nominal damages were described by Lord Halsbury in The Mediana [1900] AC 113 in the following oft-cited passage:

'Nominal damages' is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet it gives you a right to the verdict or judgment because your legal right has been infringed.  But the term 'nominal damages' does not mean small damages (116).

See, too, Baume v Commonwealth [1906] HCA 92; (1906) 4 CLR 97, 116 - 117 (Griffiths CJ).

[7] It is clear that a breach of contract by one party always gives the other party a right to recover damages for the breach:  Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 [58].  If the breach is not proved to have caused any loss, the party that has breached the contract is liable to pay nominal damages:  see Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd [1938] HCA 66; (1938) 61 CLR 286, 301; Huppert v Stock Options of Australia Pty Ltd [1965] HCA 30; (1965) 112 CLR 414, 424, 431; Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 [93], [149].

[8] While the court has a broad discretion as to costs, generally the successful party is entitled to its costs:  Rules of the Supreme Court 1971 (WA), O 66 r 1(1).  But it does not follow that a party which is awarded nominal damages is entitled to an order for the costs of the proceedings.  The question is whether a party that is awarded nominal damages is to be regarded as the successful party.  In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873, Devlin J said:

No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.  In applying that rule, however, it is necessary to decide whether the plaintiff really has been successful, and I do not think that a plaintiff who recovers nominal damages ought necessarily to be regarded in the ordinary sense of the word as a 'successful' plaintiff.  In certain cases he may be, eg, where part of the object of the action is to establish a legal right, wholly irrespective of whether any substantial remedy is obtained.  To that extent a plaintiff who recovers nominal damages may properly be regarded as a successful plaintiff, but it is necessary to examine the facts of each particular case (874).

[9] In Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, McHugh J noted that the principle that a successful party is entitled to an order for costs was grounded in reasons of fairness and policy [67].  His Honour went on to observe that, consistent with that principle, the court may award costs in favour of a defendant where the plaintiff has obtained only nominal damages, on the basis that, in reality, the successful party lost the litigation and the unsuccessful party won [70].  (Although McHugh J was in dissent in that case, his statement of principle concerning costs was not in dispute.)

[10] While each case must depend upon its own facts, where it is not a primary purpose of proceedings simply to establish or vindicate some legal right but the primary purpose is to recover substantial damages, ordinarily an award of nominal damages will not entitle a party to the costs of the proceedings:  see Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166 [9].  In such a case, the party has obtained something of no real use to them and something which, if they had known it was all that was available, they would not have brought proceedings to recover.  It would be contrary to modern notions of the efficient and cost-effective use of judicial resources to enable a party to recover its costs for a pyrrhic victory, having substantively failed in the action.” (emphasis original)

  1. [14]
    Despite the implications of the amount of time and effort directed at the plaintiff’s unsuccessful claim for damages for the lost commercial opportunity and the nominal assessment of awarded damages, there is some difficulty in completely dismissing the utility of the outcome to the plaintiff in vindication of its rights, including as against potential clients such as the second defendants and therefore in finding that it should be deprived of its costs let alone, on this basis, be ordered to pay the costs of the second defendants.
  2. [15]
    Although and as ultimately accepted by the plaintiff, it was unnecessary for the vindication of its copyright to be represented by a declaration as to opposed to the ruling it obtained in this proceeding and whilst, as the second defendants press, the amount of damages sought by the plaintiff was always within the jurisdiction of the Magistrates Court,[23] in circumstances where without prior demur this proceeding has been litigated in this Court, it would not be appropriate to limit any award of costs to any application of the Magistrates Court scale.
  3. [16]
    However, the implications of the second and “formal offer” of the second defendants, made by letter dated 16 July 2020, are different.  The earlier offer made by letter dated 28 November 2016 may be more immediately put aside. Although made at a particularly early stage and before any likely incurrence of substantial costs the complication of that offer being inclusive of “any alleged claim against Edge”, does not support any conclusion that the plaintiff then acted unreasonably in rejecting it.
  4. [17]
    In any event, it was overtaken by later offers after the institution of the proceeding and the more substantial question is as to whether the “formal offer” does appropriately engage UCPR 361.  Here, that devolves only to the questions as to whether:
    1. (a)
      the plaintiff has not obtained an order that is more favourable than that offer; and
    2. (b)
      if so, whether any party has demonstrated that an order other than that mandated by UCPR 361(2) is appropriate in the circumstances.
  5. [18]
    The answer to the first question is complicated rather than precluded by noting that the offer made by letter dated 16 July 2020 was in the lump sum of $5,000 and therefore necessarily inclusive of costs which had been incurred. Neither is such conclusion precluded by the effect of vindication of the plaintiff’s proprietal right, provided the offer permits of comparison of the nature and extent of the respective advantages and disadvantages.[24]
  6. [19]
    As correctly pointed out for the second defendants the assessment must be as to whether that was an offer of a more favourable outcome having regard to the likely occurrence of costs to that date and in comparison, to the nominal sum awarded after trial and without assessment of the subsequent costs consequences, which are now in any event in dispute. This offer was made shortly after the discontinuance of the claim against the first defendant and the allocation of trial dates for this proceeding and therefore before what might be expected to be the incurrence of the most substantial costs of preparation for and conduct of the trial.  Moreover, the plaintiff should then have realised the limitations of the claim it sought to pursue against the second defendants, in the light of the settlement with the first defendant.  As was ultimately expressly acknowledged at the outset of the trial, the whole of the settlement sum of $30,000 was to be appropriately offset against the claim for $40,000 damages which remained pleaded against the second defendants, for lost commercial opportunity.  That approach, without there being any allowance for any cost component in that settlement sum is also consistent with an implication of such costs then not being a particularly momentous issue.  Further and as noted in the substantive judgment, some particular consideration ought then to have been given to the implications of pursuit of the balance of such a claim, only against the second defendants, as it was based on probability in the nature of lost opportunity or chance and particularly in terms of the extent to which any ability to prove a loss of profit might be appropriately recognised.
  7. [20]
    In the circumstances, the appropriate conclusion is that the plaintiff has not obtained an order that is more favourable than the offer made by letter dated 16 July 2020.
  8. [21]
    As to the second question, neither party has demonstrated that any order other than that mandated by UCPR 361(2) is appropriate.  An award to the plaintiff of costs to the date of service of the offer,[25] is consistent with its vindication of its copyright and by its pursuit of this proceeding and its claim for damages for the infringement of that copyright.  However, it ought to have been acutely cognisant of the implications of both the settlement with the first defendant and the offer of the second defendant.  Otherwise, an award to the second defendants of their costs after the day of service of that offer is entirely appropriate recognition of the outcome of the proceeding and the implications of their offer.
  9. [22]
    Even if it were considered inappropriate to conclude that the plaintiff has not obtained an order that is more favourable than the offer made by letter dated 16 July 2020, the same result would be an appropriate recognition of a sense of unreasonableness in the willingness of the plaintiff to settle its claim for vindication of its rights with the first defendant but to persist against the second defendants, notwithstanding what has been disclosed as to the difficulties in proof of the claim for further damages which was maintained and pursued to the end and in incurrence of significant cost.
  1. [23]
    Accordingly, the orders are:
    1. The second defendants are to pay the plaintiff $500, as damages for breach of copyright pursuant to s 115(2) of the Copyright Act 1968 (Cth).
    2. The second defendants are to pay the plaintiff’s costs of the proceeding, as agreed or assessed on the standard basis, incurred up to and including 16 July 2020.
    3. The plaintiff is to pay the second defendant’s costs of the proceeding, as agreed or assessed on the standard basis, incurred thereafter.

Footnotes

[1]  Although, the plaintiff obtained leave, on 25/8/20 and at the outset of the trial, to read and file a further amended reply, which may be noted, in paragraph 14, to deny a pleading of the second defendants’ that the assessment of the plaintiff’s loss required that the receipt of payment from the first defendant be taken into account.

[2]  T1-12.25-43, on the basis of proof of loss of a commercial opportunity in terms of realising a profit in excess of $40,000.00.

[3] Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton [2022] QDC 116 at [30].

[4]  Ibid at [41] and [45].

[5]  Ibid at [56].

[6]  Ibid at [64]-[67].

[7]  Ibid at [68]-[72].

[8]  Ibid at [72]-[73].

[9]  Ibid at [74].

[10]  Ibid at [80]-[83].

[11]  Affidavit of M Robinson filed 8/6/2022, Ex MJR1.

[12]  Affidavit of B King filed 30/5/2022, Ex BK1 and Affidavit of Mr Robinson filed 8/6/22, Ex MJR2.

[13]  The correct citation is [1976] Fam 93; see: Murphy v Nationwide News Pty Ltd (No 2) [2021] FCA 432 and the Australian Guide to Legal Citation, Fourth Edition 2018, as published and distributed by the Melbourne University Law Review and Melbourne Journal of International Law.

[14]  Affidavit of B King filed 30/5/2022, Ex BK2 and Affidavit of M Robinson filed 8/6/22, Ex MJR3.

[15]  Affidavit of B King filed 30/5/2022, Ex BK3.

[16]  [2020] QSC 323 at [10]-[14].

[17]  As embodied in UCPR 681(1).

[18]  See: Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1975] 1 All ER 813, at 874 and Ng v Chong [2005] NSWSC 385 at [8].

[19]  The point is encapsulated in the plaintiff’s written submissions as to costs filed 30/5/22, at [23], where it is contended:

“The matter was fundamentally concerned with vindication of the Plaintiff’s rights in circumstances where the Plaintiff had discovered a rival builder had constructed a home for the Second Defendants, without any recognition of the fact that it was built from plans that the Plaintiff had invested the time and cost to prepare at the second defendants’ request, and which were prominently marked as the plaintiff’s property.”

[20]  [2012] QCA 321, at [49]-[50].

[21]  [2013] QSC 80 at [8] and [11].

[22]  [2011] WASCA 65 (S), at [6]-[10].

[23]  Cf: AV Jennings Ltd v Bogdan (2008) 75 IRP 334 at [5] and JA & JB Boyle Pty Ltd ATF The Boyle Family Trust v Major Furnace Australia Pty Ltd [2019] QDC 215 at [13]-[22].

[24] Balnaves v Smith [2012] QSC 408 at [20] and [34]-[36].

[25]  The letter enclosing this offer was sent and received, by email on 16 July 2022, see: affidavit of B King filed 30/5/22, at [3].                                    

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Editorial Notes

  • Published Case Name:

    Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton (No. 2)

  • Shortened Case Name:

    Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton (No. 2)

  • MNC:

    [2022] QDC 208

  • Court:

    QDC

  • Judge(s):

    Long SC, DCJ

  • Date:

    14 Sep 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570
1 citation
Jump To
Cite 1 - (2008) 238 CLR 570
Agricultural & Rural Finance Pty Ltd v Gardiner [2008] HCA 57
1 citation
Jump To
Cite 1 - [2008] HCA 57
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries (1951) 1 All E.R. 873
1 citation
Jump To
Cite 1 - (1951) 1 All E.R. 873
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1975] 1 All ER 813
2 citations
Jump To
Cite 1 - [1975] 1 All ER 813
Cite 2 - [1975] 1 All ER 813
AV Jennings Ltd v Bogdan (2008) 75 IRP 334
1 citation
Jump To
Cite 1 - (2008) 75 IRP 334
Balnaves v Smith [2012] QSC 408
2 citations
Jump To
Cite 1 - [2012] QSC 408
Cite 2 - [2012] QSC 408
Baume v Commonwealth (1906) 4 CLR 97
1 citation
Jump To
Cite 1 - (1906) 4 CLR 97
Baume v Commonwealth [1906] HCA 92
1 citation
Jump To
Cite 1 - [1906] HCA 92
Calderbank v Calderbank (1975) 3 All E.R. 333
1 citation
Jump To
Cite 1 - (1975) 3 All E.R. 333
Calderbank v Calderbank (1976) Fam 93
2 citations
Jump To
Cite 1 - (1976) Fam 93
Cite 2 - (1976) Fam 93
Chappel v Hart (1998) 195 CLR 232
1 citation
Jump To
Cite 1 - (1998) 195 CLR 232
Chappel v Hart [1998] HCA 55
1 citation
Jump To
Cite 1 - [1998] HCA 55
House v The King (1936) 55 CLR 499
1 citation
Jump To
Cite 1 - (1936) 55 CLR 499
Huppert v Stock Options of Australia Pty Ltd (1965) 112 CLR 414
1 citation
Jump To
Cite 1 - (1965) 112 CLR 414
Huppert v Stock Options of Australia Pty Ltd [1965] HCA 30
1 citation
Jump To
Cite 1 - [1965] HCA 30
JA & JB Boyle Pty Ltd v Major Furnace Australia Pty Ltd (No 2) [2019] QDC 215
1 citation
Jump To
Cite 1 - [2019] QDC 215
Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton [2022] QDC 116
2 citations
Jump To
Cite 1 - [2022] QDC 116
Cite 2 - [2022] QDC 116
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286
1 citation
Jump To
Cite 1 - (1938) 61 CLR 286
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd [1938] HCA 66
1 citation
Jump To
Cite 1 - [1938] HCA 66
Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65
2 citations
Jump To
Cite 1 - [2011] WASCA 65
Cite 2 - [2011] WASCA 65
Murphy v Nationwide News Pty Ltd (No 2) [2021] FCA 432
1 citation
Jump To
Cite 1 - [2021] FCA 432
Ng v Chong [2005] NSWSC 385
2 citations
Jump To
Cite 1 - [2005] NSWSC 385
Cite 2 - [2005] NSWSC 385
Oshlack v Richmond River Council (1998) 193 CLR 72
1 citation
Jump To
Cite 1 - (1998) 193 CLR 72
Oshlack v Richmond River Council (1998) HCA 11
1 citation
Jump To
Cite 1 - (1998) HCA 11
S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323
2 citations
Jump To
Cite 1 - [2020] QSC 323
Cite 2 - [2020] QSC 323
State of Queensland v Hayes (No 2) [2013] QSC 80
2 citations
Jump To
Cite 1 - [2013] QSC 80
Cite 2 - [2013] QSC 80
The Mediana (1900) AC 113
1 citation
Jump To
Cite 1 - (1900) AC 113
Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166
1 citation
Jump To
Cite 1 - [2001] WASCA 166
West v Blackgrove [2012] QCA 321
2 citations
Jump To
Cite 1 - [2012] QCA 321
Cite 2 - [2012] QCA 321

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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