Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263

Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263

By majority, the appeals were dismissed. No reasonable apprehension of bias arose from Garling DCJ hearing the amendment application, and it was open to refuse the late copyright amendment because of prejudice and delay. Citron Developments had an implied licence to use the appellant's plans for the development and no proved restriction confined that licence to substantial commencement. The respondent did not prove that the mortgagee sale transferred the licence, because the mortgage was not in evidence, but the appellant still failed in unjust enrichment because any benefit from the licence belonged to the joint venture or its liquidators, the respondent was not enriched at the...

Jurisdiction
Australia
Judgment Date
13 August 2002
Procedural Posture
Civil Appeal Concerning Architectural Plans, Contract, Unjust Enrichment, Copyright Licence, Amendment and Apprehended Bias / Appeal to the New South Wales Court of Appeal From Interlocutory and Final Decisions in the District Court
Outcome
By majority, appeals dismissed with costs.
Legal Topics
['architectural Plans' 'implied Licence to Use Copyright Material' 'transferability of Licence on Sale of Land' 'mortgagee Sale' 'amendment After Expiry of Limitation Period' 'reasonable Apprehension of Bias' 'quantum Meruit']
['copyright' 'contract' 'restitution and Unjust Enrichment' 'civil Procedure' 'mortgage Law'] ['architectural Plans' 'implied Licence to Use Copyright Material' 'transferability of Licence on Sale of Land' 'mortgagee Sale' 'amendment After Expiry of Limitation Period' 'reasonable Apprehension of Bias' 'quantum Meruit']

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Procedural Posture

Civil Appeal Concerning Architectural Plans, Contract, Unjust Enrichment, Copyright Licence, Amendment and Apprehended Bias / Appeal to the New South Wales Court of Appeal From Interlocutory and Final Decisions in the District Court

Legal Issues

  1. 1 ["Whether Garling DCJ should have disqualified himself from hearing the amendment application because of prior comments about the appellant's solicitor." 'Whether the District Court properly refused leave to amend the statement of claim after expiry of a limitation period to add a copyright infringement claim.' 'Whether Citron Developments had an implied licence to use and transfer the architectural plans prepared by the appellant.' "Whether a mortgagee's sale transferred any licence to use the plans to the respondent." "Whether the appellant could recover from the respondent in contract, quantum meruit or unjust enrichment for the respondent's use of the plans."]

Ratio Decidendi

By majority, the appeals were dismissed. No reasonable apprehension of bias arose from Garling DCJ hearing the amendment application, and it was open to refuse the late copyright amendment because of prejudice and delay. Citron Developments had an implied licence to use the appellant's plans for the development and no proved restriction confined that licence to substantial commencement. The respondent did not prove that the mortgagee sale transferred the licence, because the mortgage was not in evidence, but the appellant still failed in unjust enrichment because any benefit from the licence belonged to the joint venture or its liquidators, the respondent was not enriched at the...

Court Disposition

By majority, appeals dismissed with costs.

Orders

  • ['Appeal from the interlocutory decisions of Garling DCJ dismissed.' 'Appeal from the decision of Gibb DCJ dismissed.' 'Appeals dismissed with costs.']