A Cautionary Tale for Builders, Architects and Draftspersons

10 Jun 2018


A recent Supreme Court (WA) case (Milankovic Designs & Project Management Pty Ltd v Di Latte [2018] WASC 14) highlights the importance of understanding the contractual and assumed relationship between an architect/designer and a client. 

The facts of the case are as follows: the Client engaged the Designer to design and prepare drawings for his new home. An agreement between the parties specified that the design would be staged, as would payment to the Designer. The agreement was silent on copyright ownership of the designs and drawings, and silent on any licence of those designs and drawings from the Designer to the Client.

As in any interesting story, after preparation of plans for stage one of the new home, the relationship between the parties broke down. The Client promptly engaged an Architect to create plans (which included construction drawings of the Designer) and build the home accordingly.

The Designer successfully sued the Client AND the Architect for copyright infringement to the tune of almost $160 000 (the amount that the Designer would have earned for stage two under the agreement). 

The Client argued that there was an ‘implied term’ in the agreement with the Designer that allowed the plans to be used to construct the home (essentially a licence). The Architect argued that he was an ‘innocent infringer’ as he believed that the Client was entitled to use the drawings. The Architect never reviewed the agreement. 

Both defences were rejected.

The key considerations here are:

  • Contracts between an architect/designer and a client are a class of contracts into which a licence is implied UNLESS such a licence is excluded by an express term, OR is inconsistent with the terms of the agreement (the judge found the latter to be the case here).

  • The implied licence extends to enable builders and the like engaged by the owner to make copies of the plans in order to construct the property

Best practice is to understand the express and implied terms of such an agreement, whether you are the client, the architect, designer, builder, or third party joining the story at a later date.

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