Real Estate Tool Box Pty Ltd v Campaigntrack Pty Ltd

Mr Semmens had worked on a real estate marketing system called Process 55. He later helped create DreamDesk and admitted in 2016 that he had copied Process 55 material. Campaigntrack bought the rights in both systems, shut DreamDesk down and encouraged customers to move to Campaigntrack.

Biggin & Scott did not want to return. Its director instructed Mr Semmens to build a new web-to-print platform that did not breach another company's intellectual property. That project became Real Estate Tool Box.

Despite the instruction, Mr Semmens and developers under his supervision reproduced all or parts of DreamDesk source code, database and table works, and PDF works. Using Toolbox also reproduced a substantial part of the protected source code.

The developer did not appeal the orders against him. The High Court case was about secondary liability: whether the clients, companies and directors had gone far enough in sanctioning, approving or countenancing the infringement to be treated as authorisers.

Authorisation requires a close assessment of all the facts. Benefit from the infringement, a commercial relationship with the infringer or the ability to ask questions does not automatically establish liability.

The High Court restored the trial result for the appellants. The director's instruction was genuinely directed against infringement, he repeatedly sought assurances, and the evidence did not justify the inference that the appellants had sufficiently involved themselves in or accepted the copying. The Court also rejected an attempt to build authorisation from later indifference without the necessary factual foundation.

A written promise not to infringe is useful, but software provenance should be managed throughout the project. Ask for visibility over repositories and third-party dependencies, especially when the developer has worked on a competing product.

The contract should match the operational process. Ownership clauses do not transfer rights the developer never owned, and an indemnity may be worth little if the supplier lacks assets or insurance. Early evidence checks are usually more valuable than a claim after launch.