Standing out from the crowd – protecting a unique home


Posted By on 2/06/16 at 2:48 PM

CASE NOTE: Coles v Dormer & Ors (No 2) [2016] QSC 28

The Supreme Court of Queensland recently awarded damages to a homeowner whose unique house was copied by some neighbours.

The facts

Mr Coles bought a unique house in a compound at an auction in Queensland. The Dormers were unsuccessful bidders in this auction. The Dormers then decided to build an exact replica of Mr Coles’ house in the same compound. Mr Coles contacted the architect of his house, Mr Skyring and obtained an assignment of the copyright of the building plans. Mr Coles then sought an injunction from the Supreme Court of Queensland to prevent his house from being copied by the Dormers.

Justice Henry found that the Dormers’ now completed home did infringe on Mr Coles’ copyright and ordered the infringing aspects of the home to be removed. This meant the removal of the dormer roofs, the removal of particular styled windows and even the stone edging on the house had to be grinded away. This work was completed at a cost of $43,750 to the Dormers.

Compensatory damages

Mr Coles subsequently sought damages from the Dormers for the established copyright infringement. These were in the form of compensatory and additional damages. When assessing compensatory damages, the court found that Mr Coles’ loss of enjoyment of his unique residence and the potential loss of the home’s value were both relevant considerations. The court found that the loss of enjoyment of Mr Coles’ residence lasted until the remedial work was complete, which was a period of 2 years. Compensatory damages were assessed to be $10,000.

Additional damages

The Copyright Act 1968 allows the court when assessing additional damages to consider the flagrancy of the infringement, the behaviour of the defendant and the general deterrence. After weighing up the various factors, the court awarded Mr Coles $60,000 in additional damages, bringing the total to $70,000.

Comment

This case serves as an example for how copyright infringement is proven and more importantly, the assessment of damages. Without the consideration of flagrancy and deterrence, the damages would have been relatively small. It is also a reminder that courts will often place considerable weight on the reasonableness of the behaviour of the parties when quantifying loss.

Fiona Trethewey

Principal

Fiona Trethewey heads up our intellectual property team and specialises in intellectual property law and franchising.  She has extensive experience in assisting clients with a range of commercial issues... Read More