ONE of the Australia's largest home builders, Metricon has been found by a Federal Court judge to have copied a number of home designs of an arch rival.
The copyright right fight has also slapped Metricon heavily in court costs.
In April last year, Porter Davis brought proceedings against Metricon and its managing director Ross Palazzesi and the company’s designer Adrian Popple, had copied certain Porter Davis homes and architectural plans, including that of “Seattle”.
Justice Gilmour ruled against Metricon and made a 50% indemnity of costs order against the company on a number grounds, one being that Metricon made fraudulent allegations.
Justice Gilmour had found a witness for Metricon unreliable which included a finding that he had fabricated some of his evidence to support the Metricon’s case.
Justice Gilmour said had the witness’ conscious and deliberate effort to mislead Court was successful, the Court could have found the case in favour of Metricon.
“It is, relevant in this context, to consider particular facts and findings relating to the evidence, both oral and written given by Bujega, Popple, Palazesi and Biasin who were the key witnesses called by the respondents,” Justice Gilmour added.
Jeff Bujega is the design manager for Metricon and Jason Biasin the general manager of housing for the builder.
In the ruling, Justice Gilmour said:
• The explanations given by Popple and Bujega that the Prada 35 was a result of modifications to the Gallery 32 design as well as the Eldridge design were false;
• Bugeja deliberately copied the alfresco quadrant from the
• Popple knew that Prototype 20B was copied from the
• There was conscious copying of the Seattle 31 design and/or display home as to the alfresco quadrant by Metricon in producing Prototype 20B and in turn the Prada 35;
• Palazzesi, in his pre-trial affidavits sought to create the false impression of his close involvement in an independently created design of the Prada 35;
• The explanation by Palazzesi and Popple that the Gallery design was discussed as a basis for producing the Prototype 20A, Prototype 20B and the Prada 35 was an after the fact explanation concocted in order to establish an independent design path; and
• Ultimately in cross-examination, Popple conceded that the other accused homes namely the Tyrell, Streeton and Connolly designs were produced by reference to Prototype 20B and the Prada 35.
“These illustrate a determined effort on the part of the respondents and their witnesses to establish a defence on one of the central issues in the case which they knew to be false. It was left to the forensic efforts of the applicants’ solicitors and counsel and some belated and limited concessions made by Popple and Bugeja during their oral evidence, which led to these attempts to mislead the Court being exposed.”
In reaching the indemnity costs order, Justice Gilmour also found Metricon wasted the courts time and of other parties with “evidence of particular misconduct”.
The court found Metricon had a “wilful disregard of known facts or clearly established law” and made allegations which should never have been made.
Metricon has been ordered to pay costs on an indemnity basis to the extent of 50% of the preparation for trial and for the trial itself. The order should cover the period from early April 2006 when the respondents filed the first of the affidavits of Bugeja, Popple, Palazzesi and Biasin. The court has enabled taxation of costs.
Metricon has appealed the decision.
Legal experts said if Metricon’s appeal is unsuccessful, the company faces the potential of having to compensate Porter Davis for profits received from the sale of five homes designs Prada, Tyrell, Streeton, Connelly and Coburn.
Middletons represented Porter Davis and Metricon by Blake Dawson Waldron.
Australian Property Journal
