Demlakian Engineers Pty Ltd v The Owners of Strata Plan 80453 [2014] NSWSC 401

Demlakian Engineers Pty Ltd v The Owners of Strata Plan 80453 [2014] NSWSC 401

The contract was with the plaintiff for a defects litigation report, not for the detailed Scott Schedule form report that was produced. The fee proposal was only an approximate estimate allowing limited variation, not a basis for the plaintiff's much larger claim, and the plaintiff's over-servicing and attempted restriction of use meant only a small further amount was recoverable. Clause 7 of the Conditions of Engagement did not apply because the definitions of Project and Services did not fit a contract for a report, so the copyright claim failed and the defendant had a general law licence to use the report for the contemplated purpose. The pleaded misleading and deceptive conduct...

Jurisdiction
Australia
Judgment Date
08 April 2014
Procedural Posture
Contract Claim, Copyright Injunction Application and Cross Claim for Misleading and Deceptive Conduct / Principal Judgment After Hearing in Consolidated Proceedings, Including Proceedings Removed From the North Sydney Local Court
Outcome
Judgment for the plaintiff on the contractual claim for $585.00 plus court interest; judgment for the defendant on the copyright claim; judgment for the cross-defendant on the misleading and deceptive conduct cross-claim.
Legal Topics
['construction of Standard Form Contractual Terms' 'engineering Report Fee Dispute' 'total Failure of Consideration' 'misleading and Deceptive Conduct' 'implied Copyright Licence' 'penalty Interest Clause']
['contract' 'copyright' 'consumer Law'] ['construction of Standard Form Contractual Terms' 'engineering Report Fee Dispute' 'total Failure of Consideration' 'misleading and Deceptive Conduct' 'implied Copyright Licence' 'penalty Interest Clause']

Case Brief

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Procedural Posture

Contract Claim, Copyright Injunction Application and Cross Claim for Misleading and Deceptive Conduct / Principal Judgment After Hearing in Consolidated Proceedings, Including Proceedings Removed From the North Sydney Local Court

Legal Issues

  1. 1 ['Whether the defendant was liable to the plaintiff for money in respect of preparation of the engineering report, including with whom the contract was made, what the contract required, whether there was a total failure of consideration, quantum and interest' "Whether the plaintiff's fee proposal and conduct constituted false and misleading conduct under the Trade Practices Act 1974 (Cth)" 'Whether the defendant was entitled to a refund of monies paid and damages for breach of contract' "Whether the defendant breached copyright by using or providing the plaintiff's report to others and whether an injunction should be granted"]

Ratio Decidendi

The contract was with the plaintiff for a defects litigation report, not for the detailed Scott Schedule form report that was produced. The fee proposal was only an approximate estimate allowing limited variation, not a basis for the plaintiff's much larger claim, and the plaintiff's over-servicing and attempted restriction of use meant only a small further amount was recoverable. Clause 7 of the Conditions of Engagement did not apply because the definitions of Project and Services did not fit a contract for a report, so the copyright claim failed and the defendant had a general law licence to use the report for the contemplated purpose. The pleaded misleading and deceptive conduct...

Court Disposition

Judgment for the plaintiff on the contractual claim for $585.00 plus court interest; judgment for the defendant on the copyright claim; judgment for the cross-defendant on the misleading and deceptive conduct cross-claim.

Orders

  • ['The defendant is to pay the plaintiff $585.00 damages plus court interest.' 'Judgment in favour of the defendant in respect of the copyright claim.' 'Judgment in favour of the cross-defendant in respect of the misleading and deceptive conduct claim.' "No order for costs, save that the plaintiff should pay the...