Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39

Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39

Given the knowledge and conduct of the parties, including the necessity for agencies to upload works to REA under REA's terms, the contracts between REMA and agencies impliedly permitted those agencies to license and sub-license the works on REA's standard terms, which included allowing REA to sub-license to RP Data with continued and perpetual use. Accordingly, RP Data did not infringe copyright because its use was within the scope of the implied licence and sub-licence granted by REMA through the agencies.

Parties
Appellant: Realestate.com.au Pty Ltd; Appellant: RP Data Pty Limited; Respondent: James Kelland Hardingham; Respondent: Real Estate Marketing Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
14 December 2022
Procedural Posture
Appeal / Judgment on Appeal From the Full Court of the Federal Court of Australia
Outcome
Appeals allowed (S57/2022 in part; S58/2022 in full). Set aside orders of Full Court of the Federal Court of Australia. Orders substituted that appeal and cross-appeal be dismissed with costs. First and second respondents to pay appellants' costs.
Legal Topics
Implied Terms, Objective Theory of Contract, Licensing, Copyright Infringement, Sub Licensing, Informal Agreements
Contract Law Copyright Law Implied Terms Objective Theory of Contract Licensing Copyright Infringement Sub Licensing Informal Agreements

Case Brief

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Parties

Realestate.com.au Pty Ltd

Appellant

RP Data Pty Limited

Appellant

James Kelland Hardingham

Respondent

Real Estate Marketing Australia Pty Ltd

Respondent

Procedural Posture

Appeal / Judgment on Appeal From the Full Court of the Federal Court of Australia

Legal Issues

  1. 1 Whether the licence and right to grant a sub-licence from photographer and his company to agencies was limited to the period of the marketing campaign or extended beyond completion of sale/lease
  2. 2 Whether agencies could license or sub-license copyright on REA's usual terms to allow ongoing use and further sub-licensing to RP Data
  3. 3 Proper criteria and approach for identifying express and implied terms in informal contracts in Australian law

Ratio Decidendi

Given the knowledge and conduct of the parties, including the necessity for agencies to upload works to REA under REA's terms, the contracts between REMA and agencies impliedly permitted those agencies to license and sub-license the works on REA's standard terms, which included allowing REA to sub-license to RP Data with continued and perpetual use. Accordingly, RP Data did not infringe copyright because its use was within the scope of the implied licence and sub-licence granted by REMA through the agencies.

Court Disposition

Appeals allowed (S57/2022 in part; S58/2022 in full). Set aside orders of Full Court of the Federal Court of Australia. Orders substituted that appeal and cross-appeal be dismissed with costs. First and second respondents to pay appellants' costs.

Orders

  • Appeal in S57/2022 allowed in part.
  • Orders of Full Court of Federal Court (8 September 2021, 13 September 2021, 1 October 2021) set aside; appeal and cross-appeal dismissed with costs.