Murray, Thomas Douglas v King, Matthew [1984] FCA 283

Federal Court of Australia|1984-09-14|Before: Spender JJ, Connolly J, Sheppapd J

covvriqht whether asslanment on benalf not, whether copyright

IN THE FEDERAL COURT OF AATRALTIA } ) QUEENSLAND DISTRICT REGISTRY ) No, G5 of 1984 ) GENERAL DIVISTON ' On Apnozal fron_che Supreme Court ot Gueen:land SETWEES: THOMAS DOUGLAS MUPLAY ard ANOR. Appallants MuATrHEA KING Fespondent OF DER JUDGES MAKING ORDER Sheppara, Morilna and Spender JJ. DATE OF ORDER : 14 Septamber 1984 WHERE MADE : Brisbane THe COURT ORDE?SS TH3r:

This 15 an aopeal From a wadyment of the Supreme Court of Oueensland 'Connolly J.) by wnich the respondent recovered the sum of $106,696 from the appellants for Gamaces for infringement of copyriaht. The respodaent had also sued for damages for pasting off and, an the words of the learneu primary Judge. for "a number of (other. relared weongs z

Honour did rot find if nece+sary to d3al with anv cauz* of

In 1980 and 1381 the first aseellant and the respondent

carried on business in partnership. Trey Lusiness was known as, ''"Wot's Hapwoening on che Gold Coast". Yes worin 1oeal accivitv was to publish a magazine which bores the rare of the business. The magazine cansisteu of advertisements for various businesses and unformation of relevance to tourists sucn as lists of tourise attractions, accommodation. kia time tables. the location cf churches and tie ties, or services and other sucn matters. Four issues cr the mauatine were

between the partners over the question or whether the second appellant. who 1s the first appellant's wire, snould have an incerest in the business. Notice or dissoluticn of the partnership was aiven by the first aooetlant on 21 ctober

L362. It 1s common gecund that the partnershio was dissolved

About that time the appellants began to canvass. the advertisers cf the pattuersnip. His honour Found that thev did $0 in aranner whieh fuaqested that the busitess ~nich they were conducting 'as the same business as that formerly

Curried oon bv the paruneretai. un 2a Sepbemoer L5G] the

second appellant hai rexistered A bueitess mame, 'Leok!

What's flapeenina on the Gold Coast". His donour found that

om anumber of occasions one or other of the appellants

ae ae \ . 3. informed advertisers thar the mew publicaticn wnich was ta come out under the butirecs name whieh tha second acvellant

had reaqistered was repliciny che old. Advercisers vers

unformed that the eiblication put oat Sy un= eartne:r ship

The first issue of the néw magacirs was published for

the period December 17931 to March Llyal. IE was suplisned

under the name "Look! Over the Gold Coast", not unaer the

business name which the seccnd aprellant had registcred.

His Honour compared tne two publications and concluded

chat it was not open to amuestiron that the first issue of

form of a substantial art of the last issue of "Wot's

tiappening on the Gold Toast" published by the tattnershiv:

see Copvricght Ack 13603 ("the Ack") aea Lltil)(d) and

On 23 October 1931 the first appellant beaan proceadinas

the partnership. On 29 Jstober 1381 the Court apscinted Mr,

G.E. Lawson, a receiver "to receive the daebts now due and

owing and other property, assets or erfects belonuina te the

partnership ... with Fowe. toa carry on the (sartnership)

business ...". The order directed Me. Lawson to receive the

debts then du2 and orning and other property, ascets or

Faras. (2) and (121) cf the order we-2 at follows:-

"€1) GORDON ERIC LARSON be appointed as Receirver/Manaqer In respect af the parctnecship and the partnership business "Blot s Haopenina"" and 25 all chings necessarv to wind up che said partnershis ani erfect a -cale of the business in tne lManrec hereinafter

tenders in writing From rither of botn of the partners, tne parties tu the present action, by noon on Friday, £ thirteenth dav of Novemrer, 1921 ar t offices of Bindeer Hariv & Co, Eagle Street, Brisbane, in respect the courchnase of the business, such purchase of the business net te include the various debts owec fo or bv the business of monies the proserty of the business;:"

On 27 November 19681 tle. Lavoon entered into an agreement with the respondent for the =aie of the business to him for $62,000. Clauses 1, 3S ana 10 of Ene aarzement were as

The vendor agrees cto sell to tne purchacer and the purchaser agrees Co purcnase from the vendor for the price of SiANTY-'Dvo THOUSAND DOLLARS ($62,000.09) all the right title an erest of the vendoc bv

L certain business carriea on at the Gaia Coast in the Scate of Queensland known as Wot's Hapvening (herernafter called "the Said business") but not ancluding any debts owed to of by the sald cusiness or any monies which are the sroperty of the said business 'tocether with tne soodvi ll of the said business and the furniture and fittinas set ferth in the schetuls herero.

On the 27th dav of Hovember 1931 the vendor shall az:ve the purchaser Fuil ana complete delivery of possession of the property hereby sold and tne phuechaser shall on the same dav take delivery and enter into possession of the sime.

L0.The vender and the e that the aforesaiu eurenase price of SIXTY-TH) THOUSAND DOLLARS ($42,000.00)

Goodwill $61,400.00 Fueniture and _ 80u.00 Fittings

Tha resoondent eruceeded to bring ouc three further

editions of the vartnershin publication. All resulted ina

loss. Hi3 Honour found that manv of the forme: advertisers

had transferred their business to the new business which

published five issues in the period Decemoer 19381 to March

partnership scublications. This finding, altacuch the subrect

of on® of the arounds af appeal. was not challenved pefore us. Tne aground of appeal was e2xvres3ly abandoned. As earlier mentionzd his Horour found thar the appellints' first publication was an infreinaement of the copvriaht which subsisted in the wvartnershio s last publication It would seem, although the findings ace not spelt out. chat he was also of the view that each of the appoaliants' eublications was an infringement of the convriaht which subsisted in one or more of the partnership's publications. Those fFindinas were not the subject of arqument before us. Counsel for tne

appellants accepted them without question. I mvselr Lave not

considered whether these findings were justified. I ex

The substantial question raised by the aonoeal is whether the respondent was entitieqd to maintain an acti infringement of covvrient. In ordec Lor him todo 56 he needed to establish that he was the owner of the ecryriagnt;

+e2 ss. 31, 35, 36 and 115 of tne Act. H2re Henour found that

the respondent was the ovnec. Tt fs that firaing which

His Honour thoug.c that the first avpellanr and = tne respondent were Joint authors cf the wartnerante osunlications and -Ehus) the original owners of the copvright in them. He

think it necessasy to do 50. He thougal th nothin? turned

on the question of whether the copveiaht was orlainallv owned by the first appellant alone or by the wartners iointly. He said:-

qoverned by s. 23 of che Partnership Act." The Partnership Act to which nis Honour referred i= to be

His Honour's finding chat tne coovrigat was partnership eroperty was not challenced before us. Indeed, ccouns=l for the appellants exsresslv conceded that it was a partnershin

His Honour then came toa Ere nuk of +612 guestion which concerns us. his Honour Deinted out tnat tnare courl be no

intringement of covvright by an ownec; ge2 5.36. Unle cs the

responaent could shew that he was the owner of the canvridht

and that the fiest appellant had ceased to be the owner

thereof the action 'aust fall. His Honour then reterrea to s.

195 of the Act vynich, so far as it 18S relevant. 15 a5

(3) An aSstanment of copyright (whether total or partial) does nok have effect unless 160 #15 in writing sianed by of on penalf of the asslanor."

His Honour thought that there could be no suggestion that the respondent held the copvriant a3 an asslan.e within

the meanina of 3. 196, Rut he noted chat the respondent was

contract of sale of the business to him, His honour acded. "The auestion chen is whether fae cowvo1idght care tc him by devajution by operation of law." His Honour considered the

application to the case of che decision of the High Court in

nv. Komesaroff (19382) 56 A.L.I.F. 681 which he thought

to be distinwuishable from the oregent case. aAmongsh other

'O''Brien's case (Siaora)d) is authority for che proposition that an interest aeyolves bv operation of law Wnen, by operation of law, and without any veluntury) act om the part of the previous owner, it passes From one

interest devolves not onlv wnozn it passe from a person dving to a person livina bu when. by order of a Court. one credicor i substituted for another: Wailis ve. Smich £1882) 51 L.d. Ch. 577. I see ne alffarence in principle between the consecuuennes of an order which, inro wav tounlded upon the consent of the parties, orders che transmission of the inceresc. O'Brien's case establishes that the brinwing of a copyriaht into partnership prorerty, being an act of warties. 18 not an invuluntary act and that the leqai conseruence fiowing fiom zt cannot be described as ai davolution

within the meaning of 3s. 199(1). When however the Court orders sale and the sais 1s carried throuch by the act of cs

officer, the receiver, Lhe legal consequence is thav the proverty vests in th2 purchaser bv operation of law and wiehouk anv voluntary act of sitnec of the parties. In this sonnection if should pe remenpered that the aproincment of a receiver does not vest the proserty in him and that he has no inherent pawer of sale, so tiat 11 he 1s to sell the sale must oe ordered by the Court. See Kerr on Receivers :idcth edition) at pp. 129. 1340, 198, 302. se2 no distinction in princivle between th vace of a garnist

order the effect of wnien 138 to subspit one credits oy another av in Wallis v. Smith 'supral and the executed order of ths Court which passes the rroperty Irom one person to another It seems to me than

would aive effect cto the principles la down in O'Brien v. humesarorr (supra, uf were to hold, as I do, that the effect of the order of 6th November. 1981 and the consequential sale of 27th Neviwber was thac the copyright devoived py oreration of law upon Aung. It follows that in my coinion

10d. King 1s a camoerent plainniff and it further follews that the copyriaght was divested fron Murray so that thereafter his deai+nas with

the works could properly be described as an infrinszement of the ccpvridnt."

Notwitnstandine chat his honour had rejected the suggestion that the respondent Leld the copyrigat as an assianee, counsel for the respondent before us sougnt te support his Horour's ultimate conclusion not only upon the

basis that the copvright had devolved upon the rezeondent bv

cperation of law, but also on the batis that the respondent

was in truth an assiaree of if. Discussion ensued as to wether the respondent should have tiled a notice cf contention to raise this point. Tne discussion was inconclusive. I express no view on the matter because

counsel tor the aspellants 31d not origct to the matter being

The essential submissions relied upen by counsel for the acpellants were:-

Tne orders of the Court aid not authorise tare sate of the cooyright by Mr. Lawson as receiver. oe The aareenent for the sale oF the business to the

respondent, upon ats true construction, dia no. purnort

ll. 3. In anv event the provisions of 3. 136 Were such that there was no valid assianment of che copyright co the respondent and the cepyvright had not aevolyed upon him

The terms of the orders and of th acreement were such as to incluce the copvrignt whicn Was a partnership

Secticn 196 did operate s0 as to vest the copvrighe in the responient whether as assignees or bv devolution by

Alternatively to (2), the respondent was entitled in equity to the copyright. I deal fiest with the question of construction. Two

documents are to be construed. The first 15 the order of 5 November 1981 enpowerina the receiver to sell. The rtecond is the agreement for sale. Counsel For the agvellants relied upon the reference in paragraphs (1) and (111) of the order

diacinct Irom the assets of the business. But I bnink ir clear that 10 was intended that the receiver be encovered to sell the

avsets other than those expressly excluded, that 15 "the

various debts owed to or bry the business or monies the property of the business". The power ta cell would bea largely empty one if the receiver were not able to sell assets other than qoodwill. Une would require verv clear words indeed before one would conclude that his power was

A further matter which should be taken into account and which, 1n my opinion, nilitates against the arqument

under consideration is the fact that the interim order of 29 Qctober 1981 expressly empowered the receiver to receive the assets of the partnershin. Except to the extent that particular assots are expressly excluded, I think the power conferred by the order of 6 November 1981 oudht ta be construed conformably with that conferred by the earlier order. I would therefore reyect the submission that the order of 6 November 1981 did not empower the recelver to sell all partnership assets, including the copyright here in

As to the agreement. the prime consideration 1s the fact that clause 1 of the aqrerment expressly provides for the sale of the business "but not including any debts owed to ... or anv monies which are the property of the said business". As in the case or the order, the fact that these assets vere expressly excluded supports the view that all other assets

were included. The clause qoes on to include in what is sold

both the qoodwill of the business and the fueniture and fittings which are ceferred to in clause 10. In my opinion, those considéracions put paid to the argument that the assets other than thos? expressly excluded were not the subject of the sale. Those assets included the cogpvright which was

If there be anv remaining doubt, 1t as resolved. in my ooinion. by a consideration of the Lender. If there is ambiquity, it 1S approorlate to look to che tender to see what the respondent offered to buv. His tender was in the sum of $62,000 for the business itself "and the assets of the business". Tner2 is no reason why one should conclude that when it cane to the making of the aareerent the respondent would have been prepared to pav the same sum For no more than

Naturally, counsel for the appellants relied stronaly on clause 10 which by itself would suqqwest that oniy the qoodwill and the furniture and fittings were intended cto be sold. But it 2s obvious that the clause was included for revenue purposes, It snould not be allowed to control the construction of the contract. Tne parties were entitled, if thev chose. to provide that the entirety or the consideration was for the yooldwill and the furniture and fittings ana that no part of the consideration was to be assianed to the

For the foresoingd reasons I am of wPiniun that the

aareement for sale was intended to pass all the partnership

assets, including the copvrighl, excurt those exprassly excluded.

So the receiver vas empowerad to sell the receivership assets which included the copvriaqht. Ana@ he purported to

unelude 1t amonast what was sold to the rezoondent. Likewise

The remaining question 1s whether in some way the common

intention of the receiver and the resvoondent in th.s resvect

has been frustrated by farlure to comely with the law, particularly the wrovisions of 5s. 1565 of the Act. Fer the cespondent to succeed he needed tu show that he was e1ther the assianee of the copyright or tnat it had devolved upon him by operation of law. soomit fer the moment anv consideration of his having become entictied to the copvright by reason of an eguitaple assiaqnment as distinct fron one

having effect in law or by reason of the applicapility of

I am satisfied that the agreement for tale is capable of fulfilling the descrireticn cf "assignment" ans. 195, The fact that the copyright 19 not mentiuned specitically does

not, in mv opinion, prevent 1b operating aS an assignment.

That is because no srecial form of words 25 requirea and there 15 no reason why the assianment sv one verson ot the entirety of his assets shouid not include any copyrigne which is his; see generally Copinger and Skone Jam=3 on Copyricht,

Nevertheless there 1s a problem, For an assignment to operate under s. 156 1t must be siqned by or on behalf of the assianor. The agreement for sale 1s staned by the receiver. But a receiver does nat have more than possession of the assets in respect of which he 13 appointed. His appointment does not in any wav affect the ridght to the property in question. The Court 1ltself has possession by 1Ls5 receiver and his pess¢ssion 15 that of all parties to tre action according to their titles; see herr on Receivers, 15th edition. p. 130. Furthermwore, the receiver is never an agent for the parties entitled except in cases there their ridghts have been determined; Kerr fibid), p. 131. Trat is not this

® to an assignor is a reference to the person who has the title to the corpvright and not to a person such as a receiver wne 1s in possession of it for tne Court, albeit that he has heen empowered by the Court to seil ib. For that reason I an of

the view that tnere has not here been an assianzent within

Io turn to the question of whether the copvridht has devolved on the resporaent by opsration of law. As the learned primary Judae said, Q'Briesn's case (Surra) 1s

authority for the proposition that an interest devolves by operation of law whan, without anv voluntary act on the part of the previous owier, it passes from one person td another. The appointrent by the Court of the receiver involved no voluntary act on the part oF any fartv. ft is true that the proceedings were commenced by the first appellant and it nav

be that the orders were made by consent. But the making of

the orders took the matter out of the parties' hands. The

Court by its recelver entered into possession of the partnership assets. The order had the effect of restraining either partner from dealirg with those assets. Once the

fell was the receiver actins as un officer of the Court, not fur the varties. His task was to realise the ass-ts, pav the ereditors and account to the partners for their entitlement

The only remaining event was the sale ts the resoondent. Certainly that involved voluntary acts on the part of both the receiver and the respendent in entering ainto the agreement for sale but that was no more than a working out of

the chain of events which had taken che matter out of the

hands of the pacties and placed it im the control of the

Court. The receiver, if he had not received a satisfactory offer from either partner. would no daubt have songht other purchasers who had had no previous connection with che business. In my opinion the proper analvsis of what has

happened is that, within the meaning of s. 136, the copvright

has devolved on the responaent by operation of law.

My conclusion in that respect makes 1t unnecessary to deal with the submission that in anv event the respondent was

submissions relied uson bv counsel for the uppellants snould

ro { I certify that ths and "2° /G preceding pags are a ue s Colliery Lte

Newdigate v Newdigate Colliery Ltd. 11912) 1Ch 458. But

sub-3. 196(3) does not refer to an assignment by the assignor or his agent. It refers to an assignment by cr on behalf of the assignor. It has been held that the phrase "on behalf of" when used in trade practices legislation cowrrshends acts not necessarily falling within the concept of ayency - see

Commissioner of Trade Practices v Caltex 011 'fAustralia) Ptv.

Ltd. (¢(1974) 23 FP.L.R. 457 and Trade Practices Commission v

Bata Shoe Corvany of Australia Pty. Ltd (No.2) (1980) 149 at

And it has been held that the phrase "cn whose behalf" does not necessarily urely that a transacticn was with the actual authority of the serson represented. See Ctren v

Beabout (1948) A.L.R. 13. In Gillespie v City of Glaszow Bank

(1879) 4 App. Cas (A case where a transfer of bank stock to

"TJ hold the aupression 'for behoof of' to nean exactly the same as aif the words used fai been 'on behalf of' or 'for the benarlt of ...'".

areal sanse, for the benefit cf the rartners. In ny cf¢inmisn even though the receiver vas not the agent fo: sale of the

Hence, ur.less the form of words uted in the agreement wera ineffective to assign the copyright to King, it passed to hin. There is much authority for the proposition that no

particular form of words is necessary to effect the assignment

of the copyright. e generally, Copinger and Stone Jares on

wording of the agreenent was ineffective to constitute an

assignment, but no authority was cited in support of this proposition. In my cpinion, the wording oi the agreement was

the assets of the business, to King. He was therefore entitled to succeed in the action upon the basis that the copyright had been assigned to hin.

Had I been of the opinion that the ccepyraight had not been assigned to King by force of the agreerent, I would have been of the cpinicn that Xing was entitled to succeed in the action because the covyright had devolved upen him by operation of law. I agree with what the learned trial judg2 said or

IN THE FEDEPAL COURT OF AUSTRALIA ) CUEENSLAND DISTRICT REGISTPY ) OLD Ge of 1984 GENERAL DIVISTON )

Appellants AND: MATTHEW KING Respondent CORAM: SHEPPARD, MORLING & SPENDER JJ. DATE: 14 SEPTEMBER 1984 REASONS FOR JUDGMENT SPENDER J.: This appeal is brought trom a decision of Connolly

J. in the Supreme Court of Queensland in which his Honour gave judgment for the respondent against the appellants in the sum of $106,696.00 being damages (and interest thereon) for infringement

In about May 1980, King and the male appellant ("Murray") entered into a partnership to market an advertising magazine called "Wot's Happening on the Gold Coast". The agreement was oral. The business name "Wot's Happening on the Gold Coast" in respect of that business was registered on 13 May

1980, Murray and King being shown as the proprietors. The

partnership produced four issues of the magazine, the first issue

being published under date December 1980. It was published

On or about 25 September 1981, Murray removed himself from the premises from which the partnership had been conducted taking with him certain of the artwork which he claimed was his

On 28 September, when the fourth issue ot the magazine was in the course of distribution. Mrs Murray reqistered a business name "Look! What's Happening on the Gald Coast". Her application for reqistration indicated that the business was "publication of maqazine" and that the business commenced

The first issue of this magazine, which the primary

judge referred to as Mrs Murrav's magazine, was published for the period December 1981 to March 1982 under the name "Look! Over the Gold Coast". This magazine was different in size from the partnership magazine being narrower and marginally shorter. His Honour concluded that the overall impresgion was that there was a substantial identitv, not merely similarity, of the qreater part of the material in the two maqazines. His Honour found that "It is not open to question that the first issue of 'Look! Over the Gold Coast' is a reproduction ina material form of a substantial part of the last issue of 'Wot's Happening on the Gold Coast' as published by the partnership". This finding was not the subject

There were negotiations between Murray and King but on

21 October 1981 Murray gave notice of dissolution of the partnership. The parties are agreed that the partnership was

The primary judge found "I have no doubt that' the Murray3 canvassed the advertisers of the partnership and that they did so in a manner which suggested that the business which they were running was the old business. ... I find that ona number of occasions one or other of the Murrays informed advertisers, in effect, that the new publication was replacing the old, saying words to the effect that the old publication

On 23 October 1981, Murray issued a writ out of the Supreme Court of Queensland against King for a winding-up of the partnership. On 29 October 1981, on the application of Murray, Gordon Eric Lawson was appointed as interim receiver "to recelve the debts now due and owing and other property, assets or effects belonging to the partnership between the plaintiff and the defendant, ... with power to carry on the said business asa going concern" and he was directed "to receive the debts now due and owing and other property, assets or effects belonging to the partnership in relation to the publication 'Wot's Happening on

On 6 November 1981, Master Weld ordered that Lawson be appointed receiver/manager in respect of the partnership and the

partnership business. That order included the following terms:

(1) Gordon Eric Lawson be appointed as Receiver/Manager in respect of the partnership and the partnership business "Wot's Happening" and do all things necessary to wind up the said partnership and effect a sale of the business in the manner hereinafter described.

(iii) The said Gordon Eric Lawson do receive tenders in writing from either or both of the partners ... in respect of the purchase of the business, such purchase of the business not to include the various debts owed to or by the business or monevs the property of the business."

Both partners tendered, Murray's tender being $50.00 and

A tender by Kina for the business "Wot's Happening" was

"Tender of Matthew King for the business 'Wot's Happening'.

I hereby offer to purchase the business 'Wot's Happening' and the assets of the business for the amount of $62,000.00 payable as follows:

The balance payable within a further period of thirty (30) days."

The tender was not simply accepted but an agreement described as a business contract bearing date 27 November 1981

AGREEMENT made and entered into this 27th day of November 1981 BETWEEN GORDON ERIC LAWSON of 167 Eagle Street, Brisbane in the Sate of Queensland, Chartered Accountant (the person appointed Receiver/Manager of the partnership business known as Wot's Happening, by order of the Supreme Court of Queensland dated the sixth day of November 1981) (hereinafter called 'the vendor') of the first part and MATTHEW KING of 3094 Gold Coast Highway, Surfers Paradise in the State of Queensland

(hereinafter called 'the purchaser') of the second part, WHEREBY IT IS AGREED AS FOLLOWS: -

purchaser and the purchaser aqrees to purchase from the vendor for the price of SIXTY-TWO THOUSAND DOLLARS ($62,000.00) all the right title and interest of the vendor by virtue of the said Court Order in and toa certain business carried on at the Gold Coast in the State of Queensland known as Wot's Happening (hereinafter called 'the said business') but not including any debts owed to or by the said business or any monies which are the property of the said business together with the goodwill of the said business and the furniture and fittings set forth in the schedule hereto.

The vendor and the purchaser hereby agree that the aforesaid purchase price of SIXTY-TWO THOUSAND DOLLARS ($62,000.00) abovementioned shall be apportioned as to

Because of submissions which were founded on the terms of clause 10 of the contract, it is useful to note that in clause 7 of that contract it was recited"... the purchaser has completed the said purchase after satisfactory personal inspection and investigation of 'the said premises and business and the said fixtures, fittings, plant, trade utensils, implements, stock and licences and has perused such records of financial transactions relating to the said business as he has

The primary judge found that the magazine ""Wot's Happening on the Gold Coast" was a literary work within the meaning of 3.32 of the Copyright Act 1968. He also found that while the major part of the compilation of the work was Murray's, King did make a textual contribution and that "If it were necessary to decide the point I should regard this as a case of joint authorship". Further, the primary judge found that both in respect of material in existence prior to the formation of the partnership of which Murray was the owner of copyright, and in cases in which Murray acquired the copyright in original advertisements as author, "it should be regarded as property

brought into the partnership s0 as to become partnership property

and therefore to be governed by 3.23 of the Partnership Act

The primary judge summarized the central issues before

"There can be no infringement of copyright by the owner: 38.36; and it 1s the owner of the copyright who is empowered to bring an action for infringement: g.115(1). King brings this action for infringement against Murray and Mrs Murray. Unless therefore 1t can be shown that King is the owner of the copyright and that Murray has ceased to be the owner the action is simply not competent. ... If King is to be competent to maintain this action it must be shown that he is the sole owner of the copyright. In the circumstances of the case this can only be soif the interest of Murray, whether it be the whole of the interest in the copyright or that of a tenant 1n common, can be shown to have been transmitted by assignment or by devolution by operation of law. An assignment is ineffectual unless it is in writing signed by or on behalf of the assignor. There is no suggestion that King holds the copyright as the assiqnee in this sense. He is however possessed of the assets of the partnership by virtue of the contract of 27th November 1981. The question then is whether the copyright

The primary judge reached the conclusion that where a Court orders a sale and the sale is carried through by the act of ats officer, the receiver, the legal consequence 1s that the property vests in the purchaser by operation of law and without

any voluntary act of either of the parties. He then went on to

hold that the effect of the order of 6 November 1981 and the sale

of 27 November was that the copyright devolved by operation of

He found further that King was a competent plaintiff and that the copyright was divested from Murray so that thereafter his dealings with the work could properly be described as an

On the appeal, it was expressly conceded by the appellants that the magazine "Wot's Happening on the Gold Coast" was the subject of copyright, and that the copyright in this

magazine was an asset of the partnership between Murray and King.

Further, there was no challenge on the appeal to the finding by the primary judge of infringement, nor was there any challenge made to the quantum of damages for infringement as

The sole issue argued by the appellants on the appeal was the competency of King to maintain an action for copyright. This issue involved three submissions: first, as a matter of construction, the business contract dated 27 November 1981 was not effective to transmit to King the copyright in the magazine; secondly, there was no assignment in writing signed by or on behalf of the assignor as required by 3.196(3) of the Copyright

Act 1966 and thirdly, no copyright came to King by devolution by

As to the question of construction, the primary judge in my view was right in concluding that the partnership asset consisting of the copyright in the magazine was included in the

subject matter of the contract of 27 November 1975.

On 29 October 1981 Mr Lawson was appointed interim receiver "to receive the debts now due and owing and other property, assets or effects belonging to the partnership in relation to the publication 'Wot's Happening on the Gold Coast'

The order of 6 November 1981 empowered the receiver "to do all things necessary to wind up the said partnership and effect a sale of the business" and authorised him to receive tenders in respect of "the purchase of the business, such purchase of the business not to include the various debts owed to

or by the business or monies the property of the business".

Express exclusion of particular assets in the order of 6

At a glance

Court

Decision date

Before

Source

Judgment (266 paragraphs)

Cited By (1)