QAD Inc v Shepparton Partners Collective Operations Pty Ltd [2021] FCA 615

QAD Inc v Shepparton Partners Collective Operations Pty Ltd [2021] FCA 615

SPC infringed QAD Inc's copyright in QAD 2008 SE from 27 November 2019 by continuing to use the software after expressly indicating it would not pay the required transfer fee or select a QAD upgrade, ending any implied licence. An implied licence existed only while negotiations were ongoing and SPC was genuinely considering QAD's options. The cross-claim against SaleCo and Amatil failed because the relevant contractual obligations to use 'best endeavours' did not require payment of non-express transfer fees to third parties, nor did the contract oblige the seller to pay in these circumstances.

Parties
First Applicant: QAD Inc; Second Applicant: QAD Europe (Ireland) Ltd; Third Applicant: QAD Australia Pty Limited ACN 069 756 752; Respondent/cross Claimant: Shepparton Partners Collective Operations Pty Ltd; First Cross Respondent: Sale Proprietary Co 1 Limited; Second Cross Respondent: Coca-Cola Amatil (Aust) Pty Ltd ACN 076 594 119
Jurisdiction
Australia
Judgment Date
08 June 2021
Procedural Posture
Intellectual Property / Judgment After Final Hearing
Outcome
Applicant's claim for copyright infringement established; cross-claim dismissed; parties to confer on final orders.
Legal Topics
Copyright Infringement, Implied Licence, Cross Claim for Breach of Contract, Contract Construction
Intellectual Property Contract Copyright Infringement Implied Licence Cross Claim for Breach of Contract Contract Construction

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Parties

QAD Inc

First Applicant

QAD Europe (Ireland) Ltd

Second Applicant

QAD Australia Pty Limited ACN 069 756 752

Third Applicant

Shepparton Partners Collective Operations Pty Ltd

Respondent/cross Claimant

Sale Proprietary Co 1 Limited

First Cross Respondent

Coca-Cola Amatil (Aust) Pty Ltd ACN 076 594 119

Second Cross Respondent

Procedural Posture

Intellectual Property / Judgment After Final Hearing

Legal Issues

  1. 1 Whether respondent infringed copyright in enterprise resource planning software
  2. 2 Whether there was any implied licence to use the software after business acquisition
  3. 3 Whether business seller/Cross-Respondent breached 'best endeavours' contractual obligations to secure assignment of the licence

Ratio Decidendi

SPC infringed QAD Inc's copyright in QAD 2008 SE from 27 November 2019 by continuing to use the software after expressly indicating it would not pay the required transfer fee or select a QAD upgrade, ending any implied licence. An implied licence existed only while negotiations were ongoing and SPC was genuinely considering QAD's options. The cross-claim against SaleCo and Amatil failed because the relevant contractual obligations to use 'best endeavours' did not require payment of non-express transfer fees to third parties, nor did the contract oblige the seller to pay in these circumstances.

Court Disposition

Applicant's claim for copyright infringement established; cross-claim dismissed; parties to confer on final orders.

Orders

  • Applicants and respondent to confer and provide agreed orders within 7 days to give effect to the reasons for judgment and on costs.
  • Cross-claim dismissed.