The rule against double recovery, which has the effect of ensuring that plaintiffs are not compensated twice for the same loss, is well known and generally subject to judicial review where there are joint and several perpetrators. The recent decision of Look Design and Development Pty Ltd v Edge Developments Pty Ltd & Flaton [2022] QDC 116 by Judge Long SC of the Queensland District Court considered the rule against double recovery in the context of separate proceedings against different defendants. This case confirms that where damages for copyright infringement are compensatory, the fact that a plaintiff has already received an amount of damages from an infringer will serve to reduce the damages payable by the other .
Background
In May 2015, owners Fiona and Philip Flaton (collectively, the Flatons) were provided with a copy of Byron 214 house plan by claimant Look Design and Development (Look Design), which had been significantly altered from the ownership of Byron 214. display to match the Flatons. ‘ specific preferences (Revision B Plan).1
In June 2015, the Flatons entered into discussions with Edge Developments (Edge), a new project home builder who was also a “friend of the family”. Without consent or license, the Flatons shared Revision Plan B with Edge to illustrate the desired layout. Edge reassured the Flatons that they were only required to change the plan by 10% to avoid any violations resulting from duplication,2 a common misconception when it comes to copyright and design infringement. Therefore, Edge largely replicated Revision Plan B as a house plan and built house.
Decision
His Honor held that the copyright survived in Revision Plan B,3 and that the production of the two-dimensional plans and the three-dimensional house infringed this copyright.4 His Honor further found that by sharing the Revision B plan with Edge, the Flatons authorized substantial reproduction of the Revision B plan and, therefore, infringement.5
Relief
Compensatory damages
Look Design argued that had it not been for the infringement, the Flatons would have chosen Look Design to build their home. Accordingly, he sought A$40,000 in compensatory damages for the value of the loss of opportunity to profit from the construction of the house.
However, Look Design had previously filed a claim against Edge regarding its conduct in the same matters and settled that claim for A$30,000.
His Honor held that the principle of avoidance of duplication of damages explored in previous case law, including the idea that compensation recovered from a builder reduces a plaintiff’s need for compensation, is relevant to the assessment of damages against a landlord.6
His Honor assessed whether there had been a missed opportunity for profit and, if so, what value could be attributed to that missed opportunity.seven His Honor considered the family connection between the Flatons and Edge, and Look Design’s reluctance to accommodate the Flatons’ requests for the exclusion of electrical work and the use of a traditional slab. His Honor found that these factors supported a conclusion that there was no likelihood that the Flatons had contracted with Look Design to build their home, and therefore no evidence of causation of any damage in the nature of occasion. business lost.8
In assessing the damages suffered as a result of the breach, Long SC determined that the prior settlement reached with Edge served as substantial and adequate vindication of Look Design’s proprietary rights. However, His Honor felt that this prior settlement amount could be supplemented by an award of nominal damages against the Flatons,9 determine the appropriate amount at 500 Australian dollars.
Additional damage
Look Design also sought an award of additional damages of A$10,000 under section 115(4) of the Copyright Act 1968 (Cth).ten This type of award of exemplary or punitive damages is generally intended to punish “conscious wrongdoing in disregard of the rights of others”.11
His Honor determined that the available evidence did not demonstrate that the Flatons knew they had taken improper advantage of Look Design’s work. His Honor particularly noted Edge’s assertion that infringement could be avoided with minimal modifications and the Flatons’ strong sense of confidence in this representation.12 Accordingly, there was no basis for an award of additional damages based on gross copyright infringement, and additional damages were accordingly denied.
Key points to remember
In seeking to avoid duplication of damages, the effect of reaching a settlement with one defendant will be relevant in assessing compensatory damages in separate proceedings brought against another. Where damages arising from the same breach are sought from multiple defendants, separate determination and settlement between the plaintiff and a defendant is likely to reduce the damages available in subsequent proceedings. In addition, different remedies are available against joint infringers of copyright, and a plaintiff may obtain additional damages against only one of the two joint infringers, or alternatively an account of profits against one and damages against the other.
Harlee Bolger also contributed to this article.
NOTES
1 to [3].
2 to [34].
3 to [30].
4 to [45].
5 to [56].
6 Carlisle County Homes Pty Ltd v Brown and Residential Developments Mackay Pty Ltd [1999] QDC 284 at p. 30.
7 to [62]considering Henley Arch Pty Ltd v Lucky Homes Pty Ltd [2016] FCA 1217.
8 to [67].
9 to [74].
10 to [75]; Copyright Act 1968 (Cth) s 115(4).
11 to [82].
12 to [81].
