Case: Ancher, Mortlock, Murray &amp; Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278
Outcome: cited
A "substantial part" can be constituted by the arrangement of rooms in a design, as well as by matters such as traffic flow throughout a house: Eagle Homes v Austec Homes . Although questions of "substantiality" and "reproduction" are ultimately for the Court to determine, it is permissible and of assistance to have regard to expert opinion to resolve those questions: Ancher, Mortlock, Murray &amp; Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 at 286 and Barrett Property Group v Metricon Homes at [28]. 121 Boutique referred to Ancher, Mortlock, Murray &amp; Woolley Pty Ltd v Hooker Homes Pty Ltd where Street J said (at 284): "An architect may legitimately inspect an original plan or house and then, having absorbed the architectural concept and appreciated the architectural style represented therein, return to his own drawing board and apply that concept and style to an original plan prepared by him and in due course to a house built to such plan. There is a dividing line separating such a legitimate process from an inspection followed by a later copying of a substantial part of the physical object inspection, even though the copying be from memory; the latter exercise does infringe. In many instances it will be difficult to state categorically whether the dividing line has been crossed. Cases will not always be black or white where the alleged coping is from memory. The borderline area is clouded by a band of grey within which opinions and conclusions may differ. Within this grey band conflicting answers could without error be given to the questions is that plan or house only a copy of the concept or style of the original and hence legitimate?, or is it a copy of the author's manifestation of that concept or style and hence an infringement?" 122 Despite the significant body of evidence led in this case, and the copious citation of authority, the real dispute between the parties turns largely upon a simple question of fact. Has Inform established by reliance upon inference that those involved in the design and construction of the Villa View copied central elements of the Urban or Seasons? 123 Inform's case turns primarily upon subconscious rather than deliberate copying. It does not invite me to find that any of Mr Di Natale, Mr de Weerd, Mr O'Dwyer or Mr Lazarovski has given untruthful evidence as such. Rather, it submits that it is simply inconceivable that two such similar designs as the Seasons and Villa View could have been independently arrived at. It says that someone associated with the design of the Villa View must have seen and digested the essential features of either or both of the Urban or Seasons, each of which achieved considerable publicity at about the time the Villa View was being planned. The seeds of the Inform designs must have been planted in the minds of those who conceived the Villa View and influenced the design of that home. Inform says that any other conclusion would strain the bounds of credulity. 124 Weighed against that view is the emphatic evidence given by Mr Di Natale, Mr de Weerd, and Mr Lazarovski in particular, denying any knowledge of the Urban or Seasons at the time in question. Their evidence is supported by a detailed documentary trail, which shows the evolution of the different Boutique homes from the one at Mawson Lakes to the various Villa Grand versions, including the Contemporary Villa Grand, and ultimately the Villa View. That evidence, which included transparencies of the plans of each of these homes, was said to controvert Mr Wine's opinion to the extent that he did not resile from it in any event under cross-examination. 125 It was Oscar Wilde who said in The Importance of Being Earnest : "To lose one parent ... may be regarded as a misfortune; to lose both looks like carelessness."