Copyright infringement of architectural drawings in development

Here’s another great article from Damin Murdock regarding copyright infringement of architectual
drawings. We spend a lot of time talking about ways to improve workflow and magins but as
you rightly know, one wrong step can set you back years! Its not often that we get free legal
advice so this is well worth a read.

Copyright infringement of architectural drawings in development consent

In the High Court case of Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006]
HCA 55, Concrete Pty Limited (“Concrete”) and Parramatta Design & Developments Pty Ltd (“PDD”)
had entered into a joint venture agreement with respect to the development of land owned by PDD.

Regrettably, the joint venture relationship broke down which resulted in Concrete acquiring the land
from PDD. Upon the acquisition of the land, Concrete proceeded to construct on the land based on
architectural drawings created by PDD. The plans had also been used to obtain the Development
Consent.

When Concrete began construction, PDD objected to Concrete using the architectural drawings as it
claimed that it owned the intellectual property rights in the architectural drawings. Accordingly, Concrete
issued legal proceedings seeking a declaration from the Court that there had been an implied grant of a
licence for Concrete to use the architectural drawings.

The High Court held that the drawings were made available for the purposes of obtaining Development
Consent and therefore, there was an implied licence to use the drawings by Concrete for the construction
of the project. It was further held that in absence of a written license agreement, PDD had received a
commercial benefit for producing the drawings and subsequently selling the land. Accordingly, PDD could
not revoke the implied licence to use the architectural drawings.

For some time after the abovementioned case, it was presumed by developers that land purchased with
Development Consent could expect to have an implied licence to use the architectural drawings which
formed part of the consent.

However, in the recent Federal Court of Australia case of Tamawood Limited v Habitare Developments
Pty Limited [2013] FCA 410, the Federal Court of Australia distinguished between situations where an
architect has not received any benefit, from those where they have received a benefit.

In this case, Tamawood Ltd (“Tamawood”) sought relief against a developer, a builder and an architectural
firm for allegedly using its architectural drawings and plans (the “Plans”). During the initial stages, it was
agreed that Tamawood would prepare the Plans at no cost, on the basis that it would build the houses once
the Development Approval had been obtained. However, the relationship between the parties broke down
and Tamawood was not retained to build the homes.

The Federal Court of Australia held that the rights to use the Plans were terminated when the conditions
attached to the copyright material was not fulfilled. That is, there was an implied licence to use the Plans
if Tamawood was retained to build the homes, however, since Tamawood was not engaged to build the
homes, the implied licence was terminated. Furthermore, since the licence to use the Plans had been
terminated, the Development Consent was defective. Accordingly, a new application was required to be
made with non-infringing architectural drawings and plans.

Tips

If you regularly sell model homes, make sure your company logo, name and a © is clearly placed on your designs.

If you are planning to build based on someone else’s drawings and plans, make sure the owner of the land owns the copyright in the material before you build, otherwise, you may be liable.

If you have any questions in relation to this article, feel free to contact Damin Murdock for a free consultation on (02) 9262 5495 or join his mailing list by sending an email to reception@mclp.com.au with the subject title: B&C Subscribe

To your ongoing success,

Kurt

Remember to visit our new facebook page for your Free Builders Business
Checklist https://www.facebook.com/masterbuilderscoach?ref=tn_tnmn


The secret to turning quotes into contracts

Are you making things happen… or waiting for things to happen?

Here’s a tip that will convert more of your quotes into actual business.

We recently ran a 1 Day event at the Master Builders Association on the Gold Coast
and I’d like to share what I consider the most powerful session we ran on the day.

To see the Sales session from this successful event click here now.

7 of the 30 builders in the room identified themselves as ‘doers’ by choosing to
start working 1 on 1 with us, right there on the day. These are the guys you see out
there making things happen.

If you are a ‘Doer’ then you are probably like John Avis (John is a great example
of a builder who’s making things happen for his business). I spent some time working
1 on 1 with John in 2011 and mid last year. John emailed me earlier this month with
this update of his situation.

Hi Kurt,

Thought I would let you know how my business is going.

My business is a lot clearer now and everyone works to my targets I set at the start of
each month, these targets are drawdown based which means that everyone works to
get to that draw. Most of the contracts began at the start of the year and we have been
having good turnover – $250 to $300k per month, giving us an avg GP of 25% and a NP
of 12%. We will have a turnover of approx. $2 mil this fin year. For next Fin year I have
approx $1.5 mil contracts in place and about 6 jobs in the pipeline worth approx.
$4 mil. Goal is for $4 mil next fin year.

I now know … what to target and what price to put on it. I also know a lot about marketing
and how to produce a steady stream of clients. As you probably remember I study the
shit out of everything. I refer back to your information frequently and now I produce
excellent cash flow templates for forecasting. Thanks for the assistance and showing me
how to clarify my business. I hope you and your family are doing well.

John Avis

What is your plan for your business?

If you don’t have a plan, the key is to start! But where do you start? The reality is nothing
can happen until you make a sale! Click here now to see a Free recording of the Sales session from this successful event.

To your ongoing success,

Kurt

Remember to visit our new facebook page for your Free Builders Business
Checklist https://www.facebook.com/masterbuilderscoach?ref=tn_tnmn


Fair Work Targeting the Building & Construction Industry

Here’s another interesting and relevant article from Damin Murdock to ensure you keep your finger on the pulse and see them coming!

As at 5 May 2013, Fair Work Building & Construction has recovered over $2 million in unpaid wages and entitlements from employers in the building and construction industry.

For those who may not be aware, on 1 February 2013, the new Fair Work (Building Industry) Act 2012 came into effect (the “Act”). The object of the Act is to:

ensure compliance with workplace relation laws;
provide means of enforcing the rights and obligations;
provide safeguards on the use of the enforcement and investigative powers; and improve the level of occupational health and safety, in the building industry.

To assist with the investigations with respect to whether a particular company is compliant with the building laws of Australia, the Act has granted special powers to:

Authorised investigators to perform site visits to investigate whether a company is compliant with the building laws of Australia by obtaining information from a site or forcing persons to produce documents and/or attend to answer questions; and

Federal Safety Officers to monitor compliance with the building laws of Australia so far as they relate to occupational health and safety to:

inspect any work, material or machinery;
take samples;
interview any person; or inspect and make copies of any document that is on the premises or is assessable from a computer kept on the premises.

In light of the recent announcement made by Fair Work Building & Construction, it is clear they have commenced the targeted audits, site visits and assessment of complaints by employees and/or sub-contractors.

If you are an employer and are uncertain whether you have paid your employees and/or contractors in accordance with the Modern Award and/or the Fair Work Act and would like to find out more about same,

please feel free to contact Damin Murdock for a free consultation on (02) 9262 5495 or subscribe to their mailing list by sending an email to reception@mclp.com.au with the subject title B&C Subscribe.

To your ongoing success,

Kurt

Remember to visit our new facebook page for your Free Builders Business
Checklist https://www.facebook.com/masterbuilderscoach?ref=tn_tnmn

This article is not legal advice and should not be relied upon as legal advice. All articles found on this website are intended to provide informative information, nevertheless, in many instances legislation and case law has been simplified and/or paraphrased. If you would like personal legal advice based on your current circumstances, you should contact MurdockCheng Legal Practice for a free consultation.


The end of financial year is almost here

Hi [First Name],

The end of financial year is almost here. While having a tax bill is a sure sign that your business is profitable, it’s easy to pay too much tax. Its important to structure your business, your developments and your personal affairs
in the right way and put strategies in place to reduce your tax bill.

While we’ve seen construction businesses delaying sending out invoices until after the end of financial year to reduce their taxable income, this can create a significant cash gap in the business. They often then take longer to be paid and typically indicates the business owner does not have a well thought out tax management strategy.

If you have made a loss in 2012-13 it is also worth noting that you may be able to carry the loss back and obtain a refund for taxes you paid in 2011-12. (up to $1m)

Here’s Seven key areas you should consider prior to June 30:

1. Prepare an income tax estimate for the business so you can plan to pay directors fees or salaries, dividends or additional superannuation contributions based on your available cashflow and estimated tax liability. A franked
dividend can also have some tax advantages worth considering.

2. Pay all your 9% Superannuation Guarantee contributions or performance bonuses for your employees by 30th June to ensure you can claim the tax deduction

3. As a small business you can claim an immediate write off for assets worth less than $6,500. If you are considering any such purchases, prior to 30 June could be the time to take action.

4. If you have any bad or unrecoverable debts, be sure to write them off prior to 30 June.

5. Consider prepaying any tax deductible expenses for the coming year prior to 30 June to bring the deduction forward.

6. Consider realising any capital losses by disposing of loss generating assets before year end.

7. Do a full stock take on 30 June to write off any missing or old stock and ensure your balance sheet and asset register remains correct.

For 2014, here’s some other key items to review and consider for the year ahead to ensure your financial wellbeing:

1. Review how you are drawing your income or profits from your business, if it’s paid via a family trust, it can be significantly more tax efficient.

2. Consider setting up a Self Managed Superannuation Fund (SMSF) to allow you to invest in direct assets like property for faster wealth accumulation.

3. If you are doing your own developments, consider partially funding them using a SMSF, the profits that get returned to your fund will only be taxed at 15%, less than half of what you would otherwise pay.

4. Consider purchasing your own business premises also through an SMSF if possible.

5. Look at engaging a licensed Wealth Advisor to create you an integrated financial plan or blueprint that considers your company and personal income, your financial position and goals and documents your best strategy in the coming years to accumulate wealth in a tax efficient manner.

Please contact Jeremy Carter from Fusion on 1300 038 746 or at Jeremy@fusionfs.com.au for more information or to discuss any of the items above.

To your ongoing success,

Kurt

Remember to visit our new facebook page for your Free Builders Business
Checklist https://www.facebook.com/masterbuilderscoach?ref=tn_tnmn

Disclaimer: The above is general advice and may not be appropriate to your specific situation. Further analysis and a formal statement of advice will be needed before proceeding with the strategies suggested. Fusion Private Wealth ABN 46 152 465 462 is a Corporate Authorised Representative and Corporate Credit Representative of Magnitude Group Pty Ltd ABN 54 086 266 202, AFSL 221557. Fusion Accounting and Advisory is a registered Chartered Accountant Firm.


How To Easily Collect, Record and Maintain Your Subcontractors and Client Information

The only way you ever win profitable work is to get people to know, like and trust you, period. These days, sales enquiries are coming in from all directions. Phone, Website, Facebook, Email, Site Banners, Ute Signage, Display Homes etc. Problem is, if you don’t have a process in place for following up these enquiries you are losing sales. You probably already heard that the best way to do all of the above is use a functional cloud based CRM system, ideally something developed specifically for builders.

Also;

Running a building company has never been more challenging due to the ever increasing administration requirements being placed on builders.

How do you manage all this,

Obtain a signed Period Contract Agreement?
Obtain a copy of the Trade Licence?
Obtain a copy of the Public Liability Insurance Certificate of Currency?
Obtain a copy of the Workcover Certificate of Currency?

Do you,

Make Phone Calls?
Send Emails?
Obtain documents Onsite?

Would you,

Prevent access to site without current documentation?
Turn a blind eye?
Chase Daily until you obtained the documentation?
Your answers to the above probably leave you in one of two camps, you are either exposed to fines and prosecution or you are paying a fortune in staff administration to obtain the information and keep it current.

Or maybe you use something like ‘Keep In Touch’ which monitors all of your subcontractors renewal dates and automatically chases them up using in built autoresponders.

What is Keep In Touch?

After setting up an initial period contract agreement (supplied within the software) you can be sure the licence & insurance information will be requested as soon as it becomes due.

We know that as good as your subcontractors are, they dont always respond to the very first RFI so our system automatically ‘reminds them’ each each week. After 28 days you are notified about a subcontractor that maybe unlicensed or uninsured so that you can take the appropriate action and avoid an unnecessary fine.

Sounds expensive? It’s not, at just $49.95 + GST / Month & One Off $675.00+GST set up fee, the complete CRM System for Australasian Builders is ready for action.

You can get started now by calling 1300 764 500 to be set up. Or, if you would like to find out more click the link below which features a great video overview and answers to your questions.