Food Matters International Pty Ltd (formerly Permacology Productions Pty Ltd) and Australian Trade and Investment Commission (Austrade) - [2020] AATA 3200

Food Matters International Pty Ltd (formerly Permacology Productions Pty Ltd) and Australian Trade and Investment Commission (Austrade) [2020] AATA 3200 (27 August 2020)
Division:GENERAL DIVISION
File Numbers:2016/4497 & 2016/6313
Re:Food Matters International Pty Ltd (formerly Permacology Productions Pty Ltd)
APPLICANT

Food Matters TV Pty LtdAnd
APPLICANT

AndAustralian Trade and Investment Commission (Austrade)
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:27 August 2020
Place:Brisbane

I affirm the decision under review in application no. 4497 of 2016 by Food Matters International Pty Ltd (formerly Permacology Productions Pty Ltd).
I set aside the decision of the respondent dated 11 November 2016 in application no. 6313 of 2016 by Food Matters TV Pty Ltd and remit the application to the respondent for reconsideration in accordance with these reasons.
.........................................................................
Deputy President Dr P McDermott RFD
Catchwords
TRADE AND COMMERCE – Export Market Development Grants Act 1997 (Cth) – application for payment of export market development grant – whether eligible goods – whether Australia will derive a significant net benefit from the sale of certain goods manufactured overseas and sold overseas – decision under review affirmed
TRADE AND COMMERCE – Export Market Development Grants Act 1997 (Cth) – application for payment of export market development grant – whether eligible non-tourism service – whether Australian input in the service sufficient to ensure Australia will derive a significant net benefit from the supply of the service – decision under review remitted for reconsideration
TRADE AND COMMERCE – Export Market Development Grants Act 1997 (Cth) – year one application for payment of export market development grant – whether change in ownership of business under section 94 – whether particulars of previous owner to be treated as being those of the new owner – finding upheld
Legislation
Corporations Act2001 (Cth)
Export Market Development Grants Act 1997 (Cth)
Export Market Development Grants (Change in Ownership of Business Guidelines 2006 (Cth)
Export Market Development Grants (Change in Ownership of Business Guidelines 2016 (Cth)
Trade Marks Act 1995 (Cth)
Cases
ACI Pet Operations Pty Ltd v Comptroller-General of Customs (1990) 26 FCR 531
Allmaster Software Pty Ltd and Australian Trade and Investment Commission, Re [2019] AATA 506
Allocated Bullion Exchange Limited and Australian Trade and Investment Commission [2016] AATA 939
Amlink Technologies Pty Ltd and Australian Trade Commission, Re (2005) 86 ALD 370; [2005] AATA 359
Anthony James Magee and Australian Trade Commission [1994] AATA 364
Australian Trade Commission v Isaac Jewellery Pty Ltd [2009] FCA] 37
Bushell v Repatriation Commission (1992) 175 CLR 408
Chambers v Repatriation Commission (1995) 55 FCR 9
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Fairlight Instruments Pty Ltd and Australian Trade Commission, Re [2013] AATA 231
Fairlight.au Pty Ltd and Australian Trade Commission (2007) 95 ALD 192; [2007] AATA 1262
Isaac Jewellery Pty Ltd and Australian Trade Commission, Re (2009) 113 ALD 159; [2009] AATA 713
Nysan Asia Pacific Pty Ltd and Australian Trade Commission, Re [2015] AATA 208 Preston SuperAccess Pty Ltd and Australian Trade Commission, Re [2013] AAT 537
The Eight Modern Chinese Restaurant Pty Ltd and Australian Trade Commission [2014] AATA 923
Thomas v Sorrell (1673) 124 ER 1098
Secondary Materials
Export Market Development Grants – Administrative Guidelines
Macquarie Dictionary (Macquarie Library, 4th ed., 2005)
REASONS FOR DECISION
27 August 2020
Deputy President Dr P McDermott RFD
INTRODUCTION

The first applicant, Food Matters International Pty Ltd (formerly Permacology Productions Pty Ltd)[1] (“FMI”), applied for payment of an export market development grant (“grant”) under the scheme (“scheme”) provided by the Export Market Development Grants Act 1997 (Cth) (“EMDG Act”). The scheme provides for the payment of grants to support specified Australian exporters by reimbursement of expenses from the promotion of eligible products in foreign markets. The object of the EMDG Act is:[2]
… to bring benefits to Australia by encouraging the creation, development and expansion of foreign markets for Australian goods, services, intellectual property and know-how. It does so by providing for an assistance scheme under which small and medium Australian exporters committed to and capable of seeking out and developing export business are repaid part of their expenses incurred in promoting those products.
[1] Exhibit C, Affidavit of Mr James Colquhoun sworn 1 July 2017. The start date of the name “Food Matters International Pty Ltd” was 4 December 2014.
[2] Export Market Development Grants Act 1997 (Cth) section 3.
The scheme is administered by the Australian Trade and Investment Commission (Austrade) (“the respondent”).
In deciding whether a grant is payable, the respondent must determine whether a product in respect of which payment of a grant is sought is an “eligible product” in accordance with sections 23 to 27 of the EMDG Act.
There are restrictions on the payment of grants to a “person” where grants have previously been made to that person in respect of the same business. A person is not eligible for a grant if they have been a grantee in respect of eight or more grants under the scheme.[3] Where there has been a change in ownership of a business, the respondent must, pursuant to section 94 of the EMDG Act, treat certain particulars of the previous owner of the business as being those of the new owner, including whether the previous owner has been a grantee in respect of a grant or grants under the scheme.[4]
[3] Export Market Development Grants Act 1997 (Cth) paragraph 7(1)(c).
[4] Export Market Development Grants Act 1997 (Cth) subsection 94(2).
FMI has made an application to the Tribunal for the review of the respondent’s decision dated 4 August 2016 to pay FMI a grant of $87,122.00 after adjustments were made to the claimed amounts which excluded FMI’s promotion of ineligible goods, namely, the “Hurom Juicer” and “Freshbooks”, along with disallowing FMI’s claim for travel expenses for “ineligible employees”, including an au-pair and a child. This decision is the subject of application no. 4497 of 2016.
Food Matters TV Pty Ltd (“FMTV”) has also made an application to the Tribunal to review the respondent’s decision dated 11 November 2016 that a grant was not payable to FMTV for the 2013/2014 grant year on the basis that:
(a)pursuant to subparagraph 94(1)(b)(ii) of the EMDG Act, the business conducted by FMTV was so similar to the business conducted by FMI, or part thereof, that the business conducted by FMTV should be treated as a continuation of the business carried on by FMI; and
(b)pursuant to subsection 25(4) of the EMDG Act, FMTV’s product was not the supply of an eligible service because “there was insufficient Australian input to ensure that Australia will derive a significant net benefit from the supply of [FMTV’s] service in overseas markets”.[5]
This decision is the subject of application no. 6313 of 2016.
BACKGROUND
[5] Exhibit B, T-Documents, T3, p. 9.
Food Matters International Pty Ltd (formerly Permacology Productions Pty Ltd)
FMI applied for a grant for the grant year 2013/2014.[6] On 13 March 2015, the respondent refused the grant in its entirety.[7] On 14 April 2015, FMI requested an internal review of the decision by the respondent. FMI provided further information to the respondent regarding car lease expenses, and promotional literature and advertising. On 4 August 2016, the respondent made a decision to pay a grant of $87,122.00 to FMI. In this decision, the respondent made adjustments to the amounts claimed by FMI, the majority of which adjustments were on the basis that part of FMI’s claimed expenses related to ineligible goods, and that some expenses were not otherwise claimable.
[6] Exhibit A, T-Documents, T7.
[7] Exhibit A, T-Documents, T70.
FMI sells nutrition and general health and wellbeing DVDs through its website. FMI also produces a nutrition supplement called “Superfood Greens”. FMI is also a producer of films. FMI has been in operation since 8 October 2007, and had previously been paid five (5) previous grants by the respondent under the scheme at the time of its application for a grant for the 2013/2014 grant year. The grants paid by the respondent to FMI under the scheme are as follows:

Year

Grant Amount

2008/2009

$67,616

2009/2010

$42,250

2010/2011

$52,735

2011/2012

$50,679

2012/2013

$124,116

On 4 December 2014, the Australian Securities and Investments Commission (“ASIC”) was provided a “Form 205: Notification of resolution” pursuant to section 157 of the Corporations Act 2001 (Cth) and, from that date, Permacology Productions Pty Ltd was re-named Food Matters International Pty Ltd.[8] By way of consistency throughout my reasoning the first applicant will be referred to as FMI.
[8] Exhibit C, Affidavit of Mr James Colquhoun sworn 1 July 2017, annexure: Foot Matters International Pty Ltd: Current & Historical Company Extract dated 8 May 2017.
On 22 January 2015, the respondent requested further information regarding FMI’s application for the payment of a grant. The respondent requested a copy of financial statements from FMI. On 9 February 2015, the respondent requested further information from FMI regarding the grant application. On 10 February 2015, FMI submitted documentation to the respondent. On 11 February 2015, the respondent again requested further documents from FMI. On 12 February 2015, FMI provided these documents to the respondent. On 13 February 2015, the respondent requested further information. On 9 March 2015, the respondent again requested more information from FMI. On 12 March 2015, FMI provided rental documents to the respondent. On 12 March 2015, the respondent advised FMI that it could not provide any further extensions of time to FMI for the purpose of providing evidence towards its grant application.
On 4 August 2016, the respondent made the following decision:
(a)The claimed expenses of FMI for overseas representatives should be adjusted to account for the fact that only 39 percent of the cost of airfares related to expenses for eligible employees was attributable to promotion undertaken for FMI. This was once costs relating to the au-pair and child had been disregarded. The respondent granted payment of $1,112 for non-promotional overseas representation.
(b)The claimed expenses for free samples were eligible products, and the expenses were allowed as claimed.
(c)Promotional literature and advertising expenses being supported by invoices and payment details were allowed as claimed.
(d)The “Hurom Juicer” was found not to be an eligible product. As such, the claimed amount for promotion of eligible products was adjusted (reduced) by 25.95 percent to exclude promotion of ineligible products.
On 30 August 2016, FMI made an application to the Tribunal for the review of the decision dated 4 August 2016 and submitted that “the basis for the percentage used in making the adjustments was, in our opinion, incorrect”.
In a letter dated 6 September 2012 and signed on 11 September 2012, Mr James Colquhoun and Ms Laurentine ten Bosch were appointed sales representatives for FMI and Permacology Publishing Pty Ltd in the US. The letter of appointment appears to be signed by Mr Colquhoun and Ms ten Bosch, both in their capacity as directors of FMI, and also in their capacity as employees in receiving the appointments as overseas sales representatives.[9]
[9] Exhibit A, T-Documents, T19.
Mr Colquhoun and Ms ten Bosch are listed as the two directors of FMI.[10]
[10] Exhibit C.
Food Matters TV Pty Ltd
FMTV provides a “Subscription Video on Demand” (“SVOD”) service through which viewers have access to a range of content with a focus on health, wellbeing and nutrition. Subscribers to the SVOD service access and watch content on their electronic devices by streaming it through an internet connected device such as a computer or a smart device.
On 13 October 2014,[11] FMTV applied for a grant for the grant year 2013/2014. On 23 February 2015, the respondent refused FMTV’s application for a grant on the basis that FMTV promoted intellectual property which was not eligible intellectual property under section 26 of the EMDG Act. The respondent also determined that FMTV was a continuation of the business conducted by FMI and the respondent assessed the application as FMTV’s sixth application for a grant (a year six application). On 14 April 2015, FMTV requested internal review of the determination by the respondent. Subsequently, on 11 November 2016, the respondent again determined that FMTV was a continuation of the business conducted by FMI and that the claimed expenses were in respect of an ineligible product.
[11] Exhibit B, T-Documents, T50, p. 177.
On 22 November 2016, FMTV made an application to this Tribunal for the review of the decision, submitting that the respondent’s calculations for significant net benefit in respect of the exported product were incorrect and that FMTV is not a continuation of the business conducted by FMI.
Mr Colquhoun and Ms ten Bosch are listed as the two directors of FMTV.[12]
[12] Exhibit B, T-Documents, T28.
FMI and FMTV
On the material available to the Tribunal, the following table is a comparison of the core business structures of FMI and FMTV, along with some particulars relating to a third corporate entity, “JCLTB No 1 Pty Ltd”:

Food Matters TV Pty Ltd (FMTV)

Food Matters International Pty Ltd (formerly Permacology Productions Pty Ltd) (FMI)

JCLTB No 1 Pty Ltd

Incorporation

12 June 2013

8 October 2007

Operation

Unit 208, 45 Brisbane Road, Mooloolaba, Queensland 4557

Unit 208, 45 Brisbane Road, Mooloolaba, Queensland 4557

ABN

16 164 229 341

47 127 885 223

ACN

164 229 341

127 885 223

164 152 523

Directors

James Colquhoun and Laurentine ten Bosch

James Colquhoun and Laurentine ten Bosch

James Colquhoun and Laurentine ten Bosch

Secretary

James Colquhoun since 12 June 2013

Laurentine ten Bosch

James Colquhoun

Shares

1 ordinary share held by JCLTB No 1 Pty Ltd

200 ordinary shares, James Colquhoun 50% and Laurentine ten Bosch 50%

James Colquhoun and Laurentine ten Bosch

10 Class A shares issued owned by James Colquhoun

10 Class B shares issued owned by Laurentine ten Bosch

LEGISLATION

Section 6 of the EMDG Act provides that a body incorporated under the Corporations Act 2001 (Cth) is eligible for a grant in respect of a grant year if it satisfies the conditions applicable under section 7 of the EMDG Act.[13]
[13] Export Market Development Grants Act 1997 (Cth) paragraph 6(1)(b).
Paragraph 7(1)(c) of the EMDG Act provides:
7General rules for eligibility
(1)A person referred to in subsection 6(1) (other than an approved joint venture or a person acting in the capacity of trustee of a trust estate) is eligible for a grant in respect of a grant year if the following conditions are satisfied:
(a)the person was, in the opinion of the CEO of Austrade, genuinely carrying on business in Australia during the grant year;
…
(c)the person is not a grantee in respect of 8 or more previous grant years;
…
(i)if:
(i)the person is a grantee in respect of 2 or more previous grant years; and
(ii)the person’s application for a grant in respect of the grant year sets out a statement that the person chooses grants option B in relation to the grant year;
the CEO has decided under section 9 that the person meets the Australian net benefit requirements in relation to the grant year.
Note: For person, grant, grant year, CEO of Austrade, resident of Australia, grantee, income, related company, associate, Australian net benefit requirements and grants entry requirements see section 107.
Section 9 of the EMDG Act relevantly provides that if a grant applicant who is a grantee in respect of two or more previous grant years chooses “grants option B”, the CEO of Austrade must decide whether the applicant meets the Australian net benefit requirements in relation to the grant year, which guidelines may be determined by the Minister under section 10 of the EMDG Act for a grant year.
Section 24 of the EMDG Act provides:
24Eligible goods
Goods are eligible goods if:
(a)they are made in Australia; or
(b)the CEO of Austrade is satisfied, in accordance with guidelines determined under paragraph 101(1)(baa), that Australia will derive a significant net benefit from the sale of the goods outside Australia.
Note: Decisions under this section are subject to guidelines determined by the Minister under section 101.
Section 25 of the EMDG Act relevantly provides:
25 Eligible services
(1)Subject to subsection (4), a non-tourism service is an eligible non-tourism service if the service is supplied (whether in or outside Australia) to a person who is not a resident of Australia.
Note: For non-tourism service see section 107. For resident of Australia see section 114.
…
(4)Despite subsection (1)…:
(a)a particular non-tourism service;…
that, apart from this subsection, would be an eligible non-tourism service… is not such a service if the CEO of Austrade determines, in writing, having regard to all the facts available to him or her, that the Australian input in the service is not sufficient to ensure that Australia will derive a significant net benefit from the supply of the service.
Section 26 of the EMDG Act provides:
26 Eligible intellectual property
Intellectual property is eligible intellectual property if the CEO of Austrade is satisfied:
(a)in the case of rights relating to a trade mark--that the trade mark:
(i)was first used in Australia; or
(ii)has increased in significance or value because of its use in Australia; or
(b)in the case of rights relating to any other thing--that the thing resulted to a substantial extent from research or work done in Australia.
Note:For intellectual property see section 107.
Section 29 of the EMDG Act relevantly provides:
29 Eligible expenses—general
Subject to section 30, expenses incurred by an applicant for a grant in respect of a grant year are eligible expenses if the following conditions are satisfied:
(a)the expenses are, under section 33, claimable expenses in respect of an eligible promotional activity;
…
(d)the expenses, together with other expenses of the applicant that satisfy paragraphs (a) to (c), add up to $15,000 or more.
Section 30 of the EMDG Act provides:
30 Eligible expenses—adjustments by the CEO of Austrade
If the CEO of Austrade adjusts under section 96 the amount that, apart from this section, would be (under section 29) the eligible expenses of an applicant for the grant year, that amount as so adjusted is taken to be the applicant’s eligible expenses for the grant year.
The “eligible promotional activities” and their corresponding claimable expenses are outlined in subsection 33(2) of the EMDG Act and relevantly include:

Column 1

Item

Column 2

Activity

Column 3

Expenses

1A

maintaining one or more overseas representatives on a long term basis in foreign countries to the extent to which the representatives are maintained for approved promotional purposes

all reasonable expenses incurred by the applicant in:

(a)       maintaining the representatives; and

(b)       meeting the expenses incurred by the representatives in soliciting business for the applicant;

Up to a limit of:

(c)       if the applicant is a grantee in respect of any previous grant year—$200,000 for the grant year; or

(d)       if the applicant is not a grantee in respect of any previous grant year—$200,000 for the grant year and the immediately preceding year

4

the provision, primarily for an approved promotional purpose, of free samples to a person that is not a resident of Australia, as follows:

(a)      provision outside Australia of samples relating to any eligible product of the applicant;

(b)       provision in Australia of samples relating to eligible tourism services supplied by the applicant

all reasonable expenses incurred by the applicant that are attributable to the actual cost of providing the samples up to any applicable limit for the applicant in relation to a grant year

6

provision by the applicant or its agent of promotional literature or other advertising material (whether the literature or material is in electronic form or any other form) to the extent to which this is done for an approved promotional purpose

all reasonable expenses incurred by the applicant in payments to persons that, in the opinion of the CEO of Austrade, were not closely related to the applicant

Section 37 of the EMDG Act contains the following definition of approved promotional purpose:
37Approved promotional purpose—eligible products
(1)For the purposes of section 33, an eligible promotional activity in relation to an applicant is for an approved promotional purpose if it is carried out for the purpose of creating, seeking or increasing demand or opportunity in a foreign country for any of the following:
(a)eligible goods owned by the applicant and that the applicant intends to sell for export or to export and sell;
…
(c)eligible goods that:
(i)are not made in Australia; and
(ii)any person intends to sell outside Australia;
(d)if the applicant is not an approved body--eligible services that the applicant intends to sell to persons that are not residents of Australia;
…
(e)if the applicant is not an approved body--eligible intellectual property or eligible know-how:
(i) owned by the applicant; and
(ii)that the applicant intends to dispose of;
…
Note 1: For foreign country see section 2B of the Acts Interpretation Act 1901 . For export see section 107 of this Act. For sell see section 109 of this Act and for dispose see section 111 of this Act.
Note 2: Decisions whether goods are made in Australia are subject to guidelines determined by the Minister under section 101.
(1A)For the purposes of section 33, if an applicant is incorporated under the Corporations Act 2001 , the CEO of Austrade may determine that an eligible promotional activity in relation to the applicant is for an approved promotional purpose if:
(a)a related entity of the applicant satisfies the requirements of paragraph (1)(a), (c), (d), (da) or (e); and
(b)the activity in relation to the applicant would be for an approved promotional purpose if instead the applicant had satisfied the requirements of that paragraph.
Note:For related entity see subsection (4).
(2)For the purposes of section 33, an eligible promotional activity in relation to an applicant is for an approved promotional purpose if it is carried out for the purpose of promoting an eligible event, for which the applicant is an events promoter, to persons outside Australia.
(3)An eligible promotional activity is not for an approved promotional purpose if it is carried out for the purpose of soliciting sponsorship for an eligible event.
Definitions
(4)For the purposes of subsection (1A), an entity (the first entity) is a related entity of another entity (the second entity) if:
(a)the first entity controls, or is controlled by, the second entity (within the meaning of section 50AA of the Corporations Act 2001 ); or
(b)the same shareholder or shareholders own all the shares in both the first entity and the second entity; or
(c)the first entity is a director of the second entity.
(5)In this section:
entity means:
(a)an individual who is a resident of Australia; or
(b)a body incorporated under the Corporations Act 2001.
Section 94 of the Act provides:
94       Change in ownership of business etc.
(1)Subsection (2) applies if:
(a)at any time, a person (the previous owner) carried on a particular business (the old business) in Australia; and
(b)at a later time, another person (the new owner) carries on:
(i)the business or a part of the business (the relevant part); or
(ii)a business (the new business) that, at that time, is similar to the old business, or a part of the old business (the relevant part), carried on by the previous owner before that time, to such an extent that the CEO of Austrade is satisfied that the new business should be treated as a continuation of the old business; and
(c)the new owner applies for a grant in respect of a grant year.
Note:    Decisions whether 2 businesses are similar are subject to guidelines determined by the Minister under section 101.
(2)For the purposes of this Act, the CEO of Austrade must treat particulars of the previous owner as being those of the applicant in the following ways:
(a)any eligible expenses incurred by the previous owner in the capacity of owner of the business (or of the relevant part) are to be treated as having been incurred by the new owner;
(b)if the CEO had decided that the previous owner met the grants entry requirements--the new owner is to be treated as if the CEO had decided that it had met the grants entry requirements;
(c)any grant, or advance on account of grant, paid or payable (whether under this Act or under the repealed Act) to the previous owner in the capacity of owner of the business (or of the relevant part) is to be treated as having been paid, or as being payable, to the new owner;
(d)any other aspect of the business (or of the relevant part) is to be treated as if it had been carried on by the new owner.
Note:    For eligible expenses, repealed Act and grants entry requirements see section 107.
Subsection 107(1) of the EMDG Act provides the following relevant definitions:
company means a body incorporated under the Corporations Act 2001.
grant means a grant under this Act.
grantee means a person that has received, or is entitled to receive, a grant under this Act or under the repealed Act in respect of a grant year (other than a grant that must be disregarded because of subsection 8(1)).
grant year means:
(a)the financial year commencing on 1 July 1996 or a later financial year; …
person includes a partnership and an approved joint venture.
Note: This definition widens the ordinary meaning of person which, under subsection 2C(1) of the Acts Interpretation Act 1901, includes a body politic or corporate as well as an individual.
EVIDENCE
Profit and Loss Statements
The profit and loss statement for FMI for 1 July 2013 to 30 June 2014 records a gross profit of $1,538,779.46 and a net profit of $340,778.32 for the year.[14] Similar records are held in FMI’s balance sheet as at 30 June 2014.
[14] Exhibit A, T-Documents, T16, pp. 42-43.
The profit and loss statement for FMTV for 1 January 2014 to 30 June 2014 records a net profit of $349,241.25 for that half of the year.[15] The balance sheet for FMTV, as at 30 June 2014, records that the net assets for FMTV were valued at $216,655.87.[16]
[15] Exhibit B, T-Documents, T8.
[16] Exhibit B, T-Documents, T9.
FMTV’s financial report for year ending 30 June 2014 records that FMTV made a $237,476 profit after tax.[17]
[17] Exhibit B, T-Documents, T34.
Overseas Representation Expenses
In its application for a grant for the 2013/2014 grant year, FMI applied for expenses in the amount of $115,573.00 under “Schedule 1A: Overseas Representation”[18] of the application.[19]
[18] N.B. The reference to “Schedule” in this context is a reference to a Schedule in the grant application process, not a reference to a Schedule to the EMDG Act.
[19] See item 1A of subsection 33(2) of the EMDG Act.
On 6 September 2012, Mr Colquhoun and Ms ten Bosch were appointed as sales representatives for FMI.[20] The letter of appointment stated that the term of their assignments commenced on 17 September 2012 and concluded on 16 October 2013. FMI set out to “establish Sales Representatives in Los Angeles to promote and develop sales, mainly but not exclusively, with the US.”[21] Specifically, the sales representatives would promote and market the “Food Matters” and “Hungry for Change” range of products, as well as research the market and determine market potential opportunities. It was agreed that FMI would pay to Mr Colquhoun and Ms ten Bosch a combined living away from home allowance of $5,000 USD/month. In a letter dated 27 June 2014, FMI confirmed it had extended their period of appointment as sales representatives until at least September 2014.[22]
[20] Exhibit A, T-Documents, T19.
[21] Exhibit A, T-Documents, T19.
[22] Exhibit A, T-Documents, T20.
FMI, in support of its application for a grant for the 2013/2014 grant year, provided the respondent with a statement of rental payments from 1 July 2013 to 30 June 2014, which recorded net outgoing rent payments of $40,781.50 for the year, comprised of gross outgoing payments of $68,187.87, together with incoming payments of $16,940.01 from FMTV, and $5,019.26 from Permacology Publishing Pty Ltd.[23] FMI also provided a record of wages and transactions from 1 July 2013 to 30 June 2014 showing net outgoing wages of $437,062.26, taking into account a wages reimbursement from Permacology Publishing Pty Ltd of $17,589.00 on 25 June 2014, and an “Expense reimbursement from P # 6172” of $56,000.31 dated 30 June 2014.[24]
[23] Exhibit A, T-Documents, T22.
[24] Exhibit A, T-Documents, T23.
FMI claimed travel expenses for its sales representatives, Mr Colquhoun and Ms ten Bosch. A bank statement records that on 25 June2014, $25,265.74 was transferred from FMTV’s account to FMI’s account with the description: “travel”.[25] This bank statement was submitted alongside the sales representatives’ flight itinerary.[26] The sales representatives’ travel expenses were also recorded in a “Travel – International Transactions” ledger pertaining to FMI for the period 1 July 2013 to 30 June 2014 with a net total of $58,505.43 in travel expenses.[27] FMI also claimed travel expenses for the sales representatives relating to a lease of a vehicle, in respect of which information was provided at the request of the respondent upon review.[28]
[25] Exhibit A, T-Documents, T26, p. 82.
[26] Exhibit A, T-Documents, T24.
[27] Exhibit A, T-Documents, T44.
[28] Exhibit A, T-Documents, T78-80.
In its application for a grant for the 2013/2014 grant year, FMTV applied for $75,531 in claimable expenses under “Schedule 1A: Overseas Representative” pursuant to item 1A in subsection 33(2) of the EMDG Act.[29] This figure is the combined total of $37,546 in salaries expenses and $37,985 in combined rent and travel expenses. These claimed amounts are 90 percent of FMTV’s total overseas representation expenses. The sales representatives’ activities are summarised in the application as being: “Promotion and marketing of FMTV.com”.[30]
[29] Exhibit B, T-Documents, T5, p. 26.
[30] Exhibit B, T-Documents, T5, p. 36.
Promotion and Advertising Expenses
In its application for a grant for the 2013/2014 grant year, FMI claimed expenses in the amount of $149,902 for “Schedule 6: Promotional literature and advertising” pursuant to item 6 in the table in subsection 33(2) of the EMDG Act.[31]
[31] Exhibit A, T-Documents, T7, p. 24.
A key component of the business of FMI is its website. In October 2008, FMI contracted a website design company to create a website, namely: the “foodmatters.tv” website. FMI spent a total of $14,420.00 on this contract which also contemplated ongoing monthly hosting fees.[32] FMI submitted a document to the respondent to demonstrate how many “clicks” FMI was getting on its website.[33] Printouts of the website were provided to the Tribunal which also recorded the promotional material and offerings of FMI on the “foodmatters.tv” website as at August 2011 and November 2013.[34]
[32] Exhibit G.
[33] Exhibit B, T-Documents, T36.
[34] Exhibit F.
FMI marketed its products online through “Facebook”, “Google”, “Lighthouse”, “Alchamy”, and “Aweber”.[35] At the request of the respondent, FMI provided further bank statements which recorded purchases from those marketing suppliers.[36]
[35] Exhibit A, T-Documents, T10.
[36] Exhibit A, T-Documents, T30-T33.
FMTV claimed expenses in the amount of $41,844.00 under Schedule 6: Promotional literature and advertising through Facebook advertising and email marketing. This figure is 90 percent of the amount FMTV claims to have spent on advertising and marketing from Facebook and Aweber.[37]
[37] Exhibit B, T-Documents, T35.
On 25 June 2014, a bank statement from the account of FMI shows that FMTV transferred $41,718.00 to FMI with the description “Facebook”.[38] A tax invoice dated 24 June 2014 records that: FMI paid Facebook for promotional material in the amount of $41,718, FMI invoiced FMTV for this amount, and FMTV subsequently reimbursed FMI in that amount.[39]
[38] Exhibit A, T-Documents, T26, p. 82.
[39] Exhibit B, T-Documents, T14.
In material provided by FMTV to the respondent in support of its application for payment of a grant in respect of the 2013/2014 grant year, FMTV recorded having spent $4,776 on email marketing from Aweber.
Export Earnings
FMI, in the application for payment of a grant for the 2013/2014 grant year, claimed that it had received export earnings from eligible products in the amount of $2,204,729[40] under “Schedule 9A: Export Earnings - Goods” of the application. FMI, in support of its application, provided some sample invoices for shipping arrangements,[41] as well as sales orders, however, these documents did not account for every single transaction which formed part of the $2,204,729 figure.[42]
[40] Exhibit A, T-Documents, T7, p. 25.
[41] Exhibit A, T-Documents, T34.
[42] Exhibit A, T-Documents, T37-T41.
FMTV, in its application for payment of a grant for the 2013/2014 grant year, claimed that it had received earnings from eligible products in the amount of $825,830 under “Schedule 9B: Export Earnings – Services/IP Rights/Know-how”.
Product
Hurom Juicer
FMI, in its application for a grant for the 2013/2014 grant year, claimed expenses relating to the export of the Hurom Juicer. FMI claimed that, although the Hurom Juicer is manufactured in Korea, all “sourcing, design, marketing, sales funnel, administration, compliance applications, customer support, social media, education, shipping, logistics is performed in the Australian home office.”[43] FMI contended that, upon selling the product, FMI retained around a 30 percent margin. FMI relevantly submitted in its application that:[44]
·The Australian asset is the email list and social media following that has been built up over the last 5 years. Utilising this asset, [FMI] is able to influence the purchasing decisions of its followers by recommending products.
·The product is bought and sold from US and Australian resellers to supply customers in US and Australia.
·It is submitted that [FMI] makes product sales by marketing their ability to source particular goods for their followers.
·We take the full sale amount from the customer and pay a wholesale amount to Hurom, retaining around a 30% margin.
·The sale of the juicers requires the strategic, marketing, administration and customer service support of several team members based in our Australian head office.
·In addition to our head office, 5 full time staff and 2 paid directors, we engage the service of several contractors and service providers including launch manager, graphic design, nutritional professionals, accounts, cleaning, social media contractors etc.
·[FMI] has over 1 million subscribers on its various social media channels. Through the trust that it has built up with its followers, [FMI] is able to promote products on its main website FoodMatters.TV.
[43] Exhibit A, T-Documents, T35.
[44] Exhibit A, T-Documents, T35, p. 121.
Superfood Greens
FMI also claimed expenses relating to export earnings from “Superfood Greens”. FMI stated that the product is formulated in Australia, but is manufactured in the United States. FMI stated that there is no equivalent Australian company to manufacture the product. FMI stated that:[45]
all product conception, strategy, intellectual property, design, marketing, sales funnel, administration, compliance and copyright applications, customer support, social media, education, shipping, logistic is performed in our Australian head office. The assets employed are all Australian owned and are based at the Mooloolaba Office.
[45] Exhibit A, T-Documents, T36.
FMI’s earnings in respect of Superfood Greens were approved as being in respect of an eligible product by the respondent in its 4 August 2016 internal review decision, and consequently FMI was entitled to payment of a grant in respect of its claimable expenses in relation to Superfood Greens.[46]
Previous Grant Applications
[46] Exhibit A, T-Documents, T76, p. 237.
2010/2011 Grant Year
FMI applied for a grant for the 2010/2011 grant year. As earlier mentioned, at that time FMI was known as Permacology Productions Pty Ltd. The respondent paid a grant to FMI of $52,735.00.[47]
[47] Exhibit B, Supplementary T-Documents, T2.
2011/2012 Grant Year
In the grant year 2011/2012, the respondent paid to FMI a grant of $50,679.[48] The respondent, in its assessment, noted that FMI’s sales earnings from its Food Matters and Hungry for Change DVDs increased from $461,000.00 in the previous year to over $2,000,000.[49]
[48] Exhibit B, Supplementary T-Documents, T16.
[49] Exhibit B, Supplementary T-Documents, T13.
2012/2013 Grant Year
FMI applied for a grant for the 2012/2013 grant year. In this period, FMI’s profit and loss statement showed that FMI had made a net profit of $480,422.69.[50] The respondent, in its assessment, determined that expenses relating to the promotion by FMI of films produced by overseas film makers were not claimable expenses. The respondent also noted that, in past years, these products had not been claimed by FMI to be eligible products.
[50] Exhibit B, Supplementary T-Documents, T25.
FMI claimed for expenses relating to its export earnings attributable to the Hurom Juicer for the grant year 2012/2013, being sold by FMI since 1 May 2013.[51] The assessor remarked that FMI retained a 41 percent margin on the export of the Hurom Juicer, not taking in to account shipping costs. The assessor made the following remarks:
[FMI] says that when the customer purchases through them they get a phone number for the customer support team who can help with questions about juicing and the product, and the additional downloads of the two movies in MP4 format (Food Matters and Hungry for Change), a juicer recipe book and the Food Matters Recipe book. These extra items are value added from Australia – they are goods/know-how which is assessed as eligible. The value of these is said to be $69 in total – in these packages this is $17% [sic] which would be eligible.
[51] Exhibit B, Supplementary T-Documents, T27, p. 56.
The respondent, in its assessment, made the following conclusions:[52]
Overall the assets, activities and value-add not involved in the manufacturing process are substantially based overseas for the Hurom Juicer. Despite [FMI] making a good margin on the product and the ability of [FMI] to utilise both its marketing expertise, extensive database and package the juicer with eligible products, the requirements for S24b are not convincingly met in at least 3 of the 4 areas…
[52] Exhibit B, Supplementary T-Documents, T28.
In the 2012/2013 grant year, FMI claimed for expenses relating to Superfood Greens. FMI commenced selling Superfood Greens on 3 June 2013.[53] The respondent agreed to pay a grant to FMI for claimable expenses in respect of Superfood Greens and remarked:
Overall the balance of assets and activities used in making the goods ready for sale (apart from manufacture) seems to be split between overseas and Australia. The value-add does seem to be substantially added in Australia as the applicant comes up with the formula and designs the labelling. The economic benefits are also good with a good margin and use of local contractors to complete associated work in Australia.
… approval is provided for goods under Section 24(b).
[53] Exhibit B, Supplementary T-Documents, T27, p. 56.
2013/2014 Grant Year - FMI
FMI applied for payment of a grant in respect of the 2013/2014 grant year, which application is the subject of application no. 4497 of 2016 in these proceedings. Despite not being accepted in the previous grant year, FMI again claimed expenses in respect of the Hurom Juicer. In the respondent’s assessment, the Hurom Juicer was “researched, designed, tested and packaged by Hurom in Korea”.[54]
[54] Exhibit B, Supplementary T-Documents, T43, p. 156.

One particular component of the respondent’s determination requires that any “Australian assets” be identified with an explanation of how they are used.[55] FMI claimed that “the Australian asset is the email list and social media following which has been built up over the past 5 years”. The assessor remarked: “It is further claimed that Food Matters is able to influence the purchasing decision of its followers by recommending products. Whilst it is claimed that this is an asset, there is no asset value reported in the financial accounts provided”.
[55] Exhibit B, Supplementary T-Documents, T43.
The Hurom Juicer was distributed by FMI in the United States and Canada.[56] The respondent considered FMI’s submission that “all sourcing, design, marketing, sale funnel, administration, compliance applications, customer support, social media, education, shipping and logistics is performed in the Australian head office.”[57] However, the respondent concluded that, overall, is it difficult to demonstrate that any value of the goods was added within Australia.
[56] Exhibit B, Supplementary T-Documents, T43, p. 157.
[57] Exhibit B, Supplementary T-Documents, T43.
The reported sales by FMI for the Hurom Juicer totalled $390,000.[58] The respondent refused to pay a grant to FMI for expenses in respect of export earnings from the Hurom Juicer.
[58] Exhibit B, Supplementary T-Documents, T43, p. 158.
2013/2014 Grant Year - FMTV
FMTV applied for payment of a grant for the 2013/2014 grant year, which application is the subject of application no. 6313 of 2016 in these proceedings. The respondent concluded that FMTV was a continuation of FMI pursuant to section 94 of the EMDG Act and that FMTV promoted ineligible products. The respondent determined that no grant was payable in respect of the 2013/2014 grant year.
Subsequent applications
Subsequent to the grant application for the 2013/2014 grant year which is the subject of application no. 4497 of 2016 in these proceedings, FMI applied for a grant for the 2014/2015 grant year.[59] A profit and loss statement for FMI showed a net profit of $187,649.18 for the 2014/2015 grant year.[60] FMI again claimed expenses for the Hurom Juicer. A copy of a document detailing the outcome of this application was not provided to the Tribunal and it was submitted by the respondent in closing on 17 May 2018 that the outcomes of the subsequent applications for grants by FMI and FMTV were on hold pending the outcome of the present applications.
[59] Exhibit B, Supplementary T-Documents, T47.
[60] Exhibit B, Supplementary T-Documents, T54.
FMTV made an application for payment of grant in respect of the 2015/2016 grant year. A profit and loss statement shows a net profit for FMTV of $571,713 for the 2015/2016 grant year.[61] In the application, FMTV made a claim in respect of expenses in the amount of $114,448, being $22,686 for “Schedule 2: Marketing visits” and $91,762 for “Schedule 6: Promotional literature and advertising”. Figures for export earnings were not contained in the copy of the application which was provided to the Tribunal.[62]
Assessment of Grant Application
[61] Exhibit B, Supplementary T-Documents, T61.
[62] Exhibit B, Supplementary T-Documents, T59, p. 200.
FMI (formerly Permacology Productions Pty Ltd)
The respondent determined that FMI’s Superfood Greens product was an eligible product and agreed to grant payment to FMI for claimable expenses relating to its export. However, the Hurom Juicer was not considered to be an eligible product. The respondent considered that the Hurom Juicer fails the Australian base of business assets and value-add assessments.[63] The respondent also noted that FMI’s export of the Hurom Juicer does not meet the criterion of activities other than manufacture in a convincing manner.[64]
[63] Exhibit A, T-Documents, T64.
[64] Exhibit A, T-Documents, T68-T69.
In relation to the overseas representative expenses, the respondent noted not only was FMI claiming expenses for overseas representatives, but expenses were also by FMTV and Permacology Publishing Pty Ltd.
Upon review, the respondent maintained its determination the Hurom Juicer was not an eligible product for the purposes of the EMDG Act. The respondent also found that “Freshbooks” was an ineligible product. The respondent calculated the sales amount for ineligible products to be 25.95 percent of FMI’s total sales revenue. Therefore, for promotional literature and advertising, the respondent made an apportionment for ineligible products by deducting 25.95 percent of the claimed amount to reflect a deduction of expenses related to the promotion of ineligible products. The airfares for the au-pair and infant were deducted together with the apportioned amount of 25.95 percent, along with amounts relating to disallowed leave and administrative activities, as well as promotion to New Zealand and Australia. The adjusted amount of eligible expenses was 67.67 percent of the amount claimed.
For overseas representative expenses, the respondent found that only 39 percent of the expenses claimed related to FMI, whilst the remaining 61 percent of the eligible 67.67 percent of the claimed expenses related to FMTV and Permacology Publishing Pty Ltd. Upon review, the respondent determined that the car lease expenses were eligible.
Food Matters TV Pty Ltd
In its application for payment of a grant for the 2013/2014 grant year, FMTV described its core business as a “service” and “information media and telecommunication/internet publishing and broadcasting.”[65] In FMTV’s application, FMTV disclosed that there were other related business, such as FMI which conducts internet marketing, and Permacology Publishing Pty Ltd which publishes books. FMTV stated that it intends to offer an “Online TV Membership site for the Health and wellness genre”.
[65] Exhibit B, T-Documents, T5, p. 30.
The respondent remarked that FMTV acknowledged that only fourteen of the ninety two films shown on FMTV’s subscription video on-demand service were of Australian origins.[66]
[66] Exhibit B, T-Documents, T50, p. 179.
The respondent applied section 94 of the EMDG Act to determine whether certain particulars of FMI must be treated as being those of FMTV. On review, the assessor remarked:[67]
…it is agreed that test 1 do[es] not apply since the old business continue[s] to trade and no sale or transfer of business activity took place. The applicant started a new business and the issue is to determine how similar it is to the old business under test 2 in terms of section 94 (1)(b) (ii).
The reference to “test 1” is understood to be a reference to subparagraph 94(1)(b)(i) of the EMDG Act.
[67] Exhibit B, T-Documents, T50, p. 179.
Upon review, having considered FMTV’s submissions and the respondent determined that FMTV’s application for payment of a grant for the 2013/2014 grant year should be considered to be a “year 6” grant application.[68] The assessor determined that:
On balance, [FMTV] is assessed as carrying on a business that is similar to the old business or a part of the old business carried out by [FMI]. Test 2 in terms of Section 94(1)(b)(ii) considered to apply.
It is recommended that section 94 should be applied to for the 5 grants previously received by the related company, Permacology Productions Pty Ltd. The new business will therefore be assessed as a year 6 grant application.
[68] Exhibit B, T-Documents, T50, p. 183.
As to whether the service provided by FMTV was an “eligible service” within the meaning of section 25 of the EMDG Act, the respondent remarked: “Section 25(4) stipulates the Australian input in the service must be sufficient to ensure that Australia will derive a significant net benefit from the supply of the service”.[69] The respondent considered that there was only “minor Australian input in [FMTV]’s service” having regard to the FMTV’s advice that 85 percent of the video content for its subscription video on-demand service was non-Australian in origin. The respondent also remarked that FMTV:
has not provided any additional information on other economic indicators such as impact on Australian employment opportunity and introduction of new technology to support its argument that its service derives significant net benefit to Australia.
[69] Exhibit B, T-Documents, T50, p. 183.
The respondent, not being satisfied that FMTV’s service was an eligible service, determined that a grant could not be paid to FMTV under the EMDG Act in respect of its application for payment of a grant for the 2013/2014 grant year.
Witness Statement of Mr James Colquhoun dated 3 April 2017
On 3 April 2017, Mr Colquhoun, a director of both FMI and FMTV, made a statement in which he stated that FMTV’s activities include:[70]
[70] Exhibit C.
·Research of distributor data basis;
·Maintenance of relationships and negotiating new terms;
·Communication with distributors, sales agents and independent film makers;
·Assessing content and compiling shortlists of applicable content which process requires;
·Shortlists for final review;
·Negotiation of contract;
·Delivery on contract;
·Marketing and release; and
·Royalty payments and statements.
He stated that: “FMI operates our content based website which derives revenue from an ecommerce store and affiliate promotions”.[71]
[71] Exhibit C.
Mr Colquhoun also stated FMTV’s revenue to be $1,730,458 for the period 1 July 2016 to 31 December 2016. He stated that, of FMTV’s revenue for this period, 86.52 percent or $1,497,232 was retained in Australia, with FMTV paying royalties in the amount of $233,226. Of the royalties payable, 31.48 percent or $73,430 was paid in Australia.
Witness Statement of James Colquhoun dated 1 June 2017
Mr Colquhoun provided a further statement dated 1 June 2017 in which he stated that:
(a)“There are no formal agreements between [FMTV and FMI], however, there are presumed or informal film maker, affiliate and operational agreements between these two companies”;
(b)“FMI has a film maker agreement with FMTV granting it the rights to stream Food Matters and Hungry for Change for which FMI receives a royalty payment”;
(c)“FMI uses the same reporting and payment systems as FMTV that it uses for all their film makers. Royalties are paid on a per view basis from 20% of the royalty pool”;
(d)“FMTV is a whole sale [sic] customer of FMI and purchases physical stock (to date this has only been books and USBs)”;
(e)“FMI invoices FMTV for the stock in the same manner that it invoices other wholesale customers. FMI receives affiliate payments from FMTV for all customers it refers to FMTV”; and
(f)“FMI invoices FMTV each month for any operational expenses, for example rent, wages, travel etc”.
Witness Statement of James Colquhoun dated 16 May 2018
Mr Colquhoun provided a further statement on 16 May 2018. In his statement, Mr Colquhoun summarised the revenue obtained by FMTV in the following table, with amounts expressed in USD:

Dates

Non AU Revenue

Non AU Royalties

Net Benefit to AU

Jan-Jun 2014

$882,591

$137,733

$744,858

Jul-Dec 2014

$562,631

$95,528

$467,103

Jan-Jun 2015

$1,028,457

$162,733

$865,724

Jul-Dec 2015

$843,513

$150,368

$693,145

Jan-Jun 2016

$1,485,604

$182,448

$1,303,156

Jul-Dec 2016

$1,029,995

$126,621

$903,374

Jan-Jun 2017

$1,118,860

$138,110

$980,750

Jul-Dec 2017

$1,162,268

$154,822

$1,007,446

Total

$8,113,919

$1,148,363

$6,965,556

Statutory Declaration of Ms Peita Ward dated 20 November 2017

Ms Peita Ward, in her statutory declaration dated 20 November 2017, stated that she is the Finance and Human Resource Manager for FMTV and FMI. Ms Ward stated that:
(a)She was involved in the day to day management activities of the business and the matters declared in her statement fell within her personal knowledge;
(b)FMI was not in the business of “manufacturing” or even “on selling” juicers.[72]
(c)“As a service to [FMI’s] customers (and as a result of often receiving enquiries in this regard) [FMI has] partnered with Hurom. The reason for this partnership was because we approved of the quality of their juicer.”
(d)“We take online orders and Hurom dropships the product directly to the customer. This is an added service to our customers with very little effort from our end in that we do not need to stock juicers or even market or promote any juicer.”
(e)“[FMI], or any of the other companies associated with Food Matters, have never promoted Hurom Juicers, have never spent any money on the marketing of Hurom Juicers, have never taken any steps to market Hurom Juicers to [its] customers, have never [at] any trade show or event displayed Hurom Juicers or any juicer for that matter or any material promoting juicers including the Hurom Juicer.”
(f)“[FMI] or any of the company’s associated with Foot Matters have never, through links to our sales pages in the recipe content, paid to promote Hurom Juicers.
[72] Exhibit D.
ISSUES
The issues in the application by FMI for payment of a grant for the 2013/2014 grant year can be summarised as follows:
(a)Whether the Hurom Juicer is an eligible product;[73] and
(b)What the correct adjustment amount should be to FMI’s claimed promotional expenses, if any, in order to appropriately reflect the extent to which FMI’s claimed expenses for overseas representation, promotional literature and advertising for the 2013/2014 grant year related to eligible products?
[73] Export Market Development Grants Act 1997 (Cth) paragraph 24(b).
The issues in the application by FMTV for payment of a grant for the 2013/2014 grant year can be summarised as follows:
(a)Is the supply of the SVOD service an eligible product?
(b)Does section 94 of the EMDG Act require the respondent to treat particulars of FMI as being those of FMTV, having regard particularly to paragraph 94(2)(c) of the EMDG Act which provides:
any grant… paid… to the previous owner in the capacity of owner of the business (or of the relevant part) is to be treated as having been paid… to the new owner;
SUBMISSIONS
FMI’s application for payment of a grant for the 2013/2014 grant year
FMI Submissions
FMI does not dispute the respondent’s decision to deduct, from FMI’s claimed expenses, amounts relating to travel expenses for the au-pair and the child and stated that this was claimed in error.[74]
[74] Exhibit A, T-Documents, T6, p. 17.
In paragraph 18 of the respondent’s Statement of Facts, Issues and Contentions, the respondent submits:
In [FMI’s] Facts and Contentions filed 18 November 2016, [FMI] appears to have refined their contentions, and appears not to challenge the Respondent's finding in the Review Decision, that the Horum [sic] Juicers remained ineligible under the section 24(b) provisions.
In paragraph 1 of FMI’s Statement of Facts and Contentions, FMI submits:
[FMI] takes no issue with and relies on paragraphs 1 – 20 of the Respondent’s Statement of Facts and Contentions.
FMI submits that, as sales representatives, Mr Colquhoun and Ms ten Bosch were employed by (at least) three separate entities, namely: FMI, FMTV, and Permacology Publishing Pty Ltd. FMI agrees that the percentage of the expenses incurred that are attributable to FMI is 39 percent.[75] FMI admits that there was some overlap between the promotional materials on the FMI and FMTV websites by 2017, however, FMI contends that this was not the case in 2013/2014.[76]
[75] Exhibit A, T-Documents, T6, p. 17.
[76] FMI’s Statement of Facts and Contentions dated 25 August 2017, paragraph [5].
In the 4 August 2016 determination, with respect to FMI’s application for payment of a grant for the 2013/2014 grant year, the respondent determined that, of FMI’s claimed expenses for overseas representation and promotional literature and advertising, the claimable expenses attributable to FMI should be adjusted (reduced) by 25.95 percent to represent expenses relating to the promotion of ineligible products, namely, the Hurom Juicer.
FMI submits that “[w]hen apportioning amounts for the promotion between eligible and non-eligible products, the Guidelines for the Administration of the EMDG Act have a number of different methods that can be used”.[77] From FMI’s submissions there appears to emerge two bases for contending that the adjustment to FMI’s claimed expenses should be reduced from 25.95 percent, either on a per “hits” basis to 2.08 percent, or, on a per “item” basis to 2 percent. The per “hits” basis is certainly the salient argument in FMI’s submissions and the “per item” contention was not advanced at, or after, the hearing.
[77] FMI’s Statement of Facts and Contentions dated 21 November 2016, paragraph [12].
FMI submits that paragraph 5.4.12 of the Administrative Guidelines should be read in the context of paragraph 5.8.15 “EMDG and website expenses” to calculate the extent to which FMI’s claimed expenses related to the sale of the Hurom Juicer. FMI contends it merely provided a link to the Hurom Juicer, as FMI considered that the Hurom Juicer was of good quality. In light of its contention that FMI awarded no marketing effort or expenditure to the Hurom Juicer, FMI submits that the apportionment should be calculated on the basis of the number of website hits to the Hurom Juicer page, as a percentage of hits to the foodmatters.tv website, in order to accurately adjust the claimed expenses for overseas representation and promotional literature and advertising. FMI submits that “hits to particular parts of the website is a suitable method of assessment”.[78]
[78] FMI’s Statement of Facts, Issues and Contentions dated 25 August 2017, paragraph [9].
FMI submits that “[i]n Guideline 5.8.15 relating to Internet Expenses, it states that Austrade will consider any reasonable basis for apportionment. Measuring “hits” to a website and “hits” to particular parts of the website would be a suitable starting point”.[79] If FMI’s submission is accepted, this would result in the expenses in respect of the Hurom Juicer representing only 2.08 percent of FMI’s claimed expenses for the 2013/2014 grant year.
[79] FMI’s Statement of Facts, Issues and Contentions dated 21 November 2016, paragraph [15].
FMI submits that paragraph 5.4.12 of the Administrative Guidelines is “not entirely clear as to whether the… assessment is by individual items or by the value, if it is in fact by individual items the Applicant contends that its figure of 2% will be eligible. The Respondent however assessed the claim on the value figure”.[80] FMI submits that the revenue from the Hurom Juicer represented a disproportionate percentage of income overall, and therefore, the percentage of revenue from the Hurom Juicer does not provide an accurate measure for expenses for overseas representation and promotional literature and advertising. FMI contends that the sales representatives did not spend 25.95 percent of their time promoting the Hurom Juicer, nor did FMI spend 25.95 percent of its advertising costs on promoting the Hurom Juicer. FMI relies on the evidence of Mr Colquhoun and Ms Ward, who, as contended by FMI, gave evidence that no marketing effort was expended by FMI on the Hurom Juicer.
[80] FMI’s Statement of Facts, Issues and Contentions dated 25 August 2017, paragraph [6].
FMI submits that, in addition to the Hurom Juicer link, as FMI provides a further service of “drop shipping” of the juicers, it is being “penalised” by the respondent with regards to its application for payment of a grant for the 2013/2014 grant year.
Respondent Submissions
The respondent contends that, when undertaking its assessment as to whether the Hurom Juicer is an eligible good for the purposes of paragraph 24(b) of the EMDG Act, it takes into account the following factors listed in the Administrative Guidelines under paragraph 4.2.2:[81]
·The value of the project;
·The value of Australian inputs compared with overseas inputs;
·The nature of the inputs, such as professional staff compared to labourers;
·The underlying intellectual property or know how involved;
·Employment generated in Australia;
·Net foreign exchange earnings; and
·Any other notable factors.
[81] Respondent’s Statement of Facts, Issues and Contentions (FMI), paragraph [10].

I note at this juncture that FMI did not take issue with the respondent’s submission at paragraph 10 of its Statement of Facts, Issues and Contentions dated 18 July 2017.[82] However, the abovementioned factors referred to by the respondent are contained within paragraph 4.2.2 of the Administrative Guidelines which relates to “services” under subsection 25(4) of the EMDG Act and are therefore not necessarily intended to be considerations in determining whether a good is an “eligible good” for the purposes of administering the scheme.
[82] FMI’s Statement of Facts, Issues and Contentions dated 25 August 2017, paragraph [1].
As observed above, FMI no longer contends that the Hurom Juicer was an “eligible good”, rather, FMI’s contention is that the extent to which its claimed expenses must be adjusted should be reduced to reflect a lesser extent to which the Hurom Juicer sales are related to FMI’s claimed expenses.
The expenses being claimed by FMI under Schedule 6 for Promotional literature and advertising are for:[83]
·Facebook advertising;
·Google adwords; and
·Email marketing by Aweber.
The respondent submits that these advertising and promotional expenses cannot be assessed under paragraph 5.8.15 of the Administrative Guidelines as this paragraph applies to expenses incurred in the setup, operation and hosting of a website.[84] The respondent submits that “the method of apportionment suggested in the Guideline [5.8.15] is only applicable for eligible expenses incurred in the operation of [FMI’s] website”.[85] The respondent observed that FMI did not claim for expenses relating to the setup, operation and hosting of its website.[86]
[83] Respondent’s Statement of Facts, Issues and Contentions (FMI), paragraph [24.1].
[84] Respondent’s Statement of Facts, Issues and Contentions (FMI), paragraph [25].
[85] Respondent’s Statement of Facts, Issues and Contentions (FMI), paragraph [27].
[86] Respondent’s Statement of Facts, Issues and Contentions (FMI), paragraph [26].
In respect of FMI’s submission that the apportionment should be reduced from 25.95 percent to 2.08 percent on the basis of how many “hits” are recorded on the Hurom Juicer page, the respondent considers FMI’s submissions to be flawed because the website figures provided by FMI do not compare the hits in respect of other products sold by FMI, rather, they are expressed only with reference to “all hits”.[87] The respondent disputes the propriety of this approach as it has the effect of including “all uncommitted visitors who have only vague general interest in the brand and no intention of making a purchase”.[88] The respondent further contends that “visitors to the website who wish to buy the ineligible products would still have to navigate to those pages via the main website, in doing so adding the apportionment of the eligible products (by the Applicant's calculus)”.[89]
[87] Respondent’s Statement of Facts, Issues and Contentions (FMI), paragraph [28.1].
[88] Respondent’s Statement of Facts, Issues and Contentions (FMI), paragraph [28.2].
[89] Respondent’s Statement of Facts, Issues and Contentions (FMI), paragraph [28.3].
The respondent calculated the 25.95 percent apportionment in reference to the revenue earned by FMI disclosed in its profit and loss statements and balance statements.
The respondent submits that Ms Ward’s testimony is inconsistent with her written statement. The respondent contends that Ms Ward, in cross-examination, affirmed the accuracy of the documentary evidence of the marketing and promotion of the Hurom Juicer. In her statutory declaration, however, Ms Ward stated that FMI conducted little-to-no marketing and promotion of the Hurom Juicer.
The respondent submits that FMI’s application for a grant for the 2013/2014 grant year, and particularly, FMI’s submissions arguing that the Hurom Juicer contributed a significant net benefit to Australia, demonstrate that there was an effort by FMI to market the product. Further, the 30 percent mark-up on the Hurom Juicer demonstrates that the revenue earned from the Hurom Juicer is significant to the business of FMI. The respondent submits that this is inconsistent with the evidence led at the hearing and through FMI’s submissions. The respondent contends that FMI now appears to claim that FMI undertook no marketing of the Hurom Juicer, in order to claim all expenses for advertising and promotional literature and overseas representation.
FMTV’s application for payment of a grant for the 2013/2014 grant year
FMTV Submissions
FMTV agrees that FMI falls within the definition of “previous owner” and its business, or a part thereof, falls within the definition of “old business” pursuant to paragraph 94(1)(a) of the EMDG Act. FMTV, however, submits that FMTV does not fall within the meaning of the term “new owner” under paragraph 94(1)(b) of the Act. FMTV provides a SVOD service which has content focusing on educational videos that promote healthy living. FMTV, unlike FMI, has a library of “content verticals”. FMTV does not undertake film-making processes like FMI. FMTV submits that FMI produces products whilst FMTV promotes material.
FMTV describes its business as the “curation of material using Australian employees and intellectual property that is developed internally. The curation is aimed at assessing the content to evaluate the value of the content for the channel”.
FMTV relies on the principle in Fairlight Instruments Pty Ltd and Australian Trade Commission,[90] stating that “the comparisons and their cumulative effect do not constitute a mathematical exercise”.
[90] [2013] AATA 231.
FMTV submits that the following decisions of this Tribunal, referred to by the respondent, do not apply as FMTV and FMI are not essentially the same businesses: Nysan Asia Pacific Pty Ltd and Australian Trade Commission, Re [2015] AATA 208; Preston SuperAccess Pty Ltd and Australian Trade Commission, Re [2013] AAT 537; and Amlink Technologies Pty Ltd and Australian Trade Commission, Re (2005) 86 ALD 370; [2005] AATA 359.
FMTV submits that Fairlight.au Pty Ltd and Australian Trade Commission (2007) 95 ALD 192; [2007] AATA 1262 cannot apply, contending that:
If the Applicant continued to produce films all be it [sic] in different format driven by technological advancement this matter would have been applicable. The Applicant however is putting together content using know-how developed and applied in Australia to provide streaming video on demand to international audience.
FMTV submits that FMI is distinguishable from FMTV as FMTV supplies a SVOD service.
FMTV submits that:
If the legislator wanted to prohibit further grants to previous recipients despite the fact that it may be in a different business, the act would have provided as such.
FMTV submits that although there is non-Australian content made available on overseas servers and platforms, a substantial amount of work and research is conducted within Australia. FMTV currently employs 15 people who are permanent Australian residents. The applicant submits that Australia benefits from FMTV’s net profit in the amount of $349,241.25 for the 2013/2014 grant year.
Mr Colquhoun gave evidence at the hearing that FMTV undertakes web-development which is done in Australia with an Australian team, with Australian intellectual property. The technology is developed within Australia for a world platform.
FMTV submits that “the object of the EMDG Act is to bring benefits to Australia by encouraging the creation, development and expansion of foreign markets for Australian goods, services, intellectual property and knowhow”. Further, FMTV submits that the Administrative Guidelines view the film industry separately from any other industry.
The word “disposal” as referred to in paragraph 4.4.8 of the Administrative Guidelines, is defined under section 107 of the Act. “Disposal” relates to intellectual property or know-how, to include sale, grant or assignment. FMTV submits that FMTV supplies streaming video content on-demand, and is know-how, as the service was created and developed in Australia.
Respondent Submissions
The respondent referred to the Object of the Division in section 93 in the EMDG Act as passed in 1997 and contends that the purpose of section 94 of the EMDG Act was to:
deal with cases where, because of certain specified business arrangements, an applicant for a grant is carrying on a business that is to any extent similar to the business, or any part of the business, of another person who has already received grants under this Act or under the repealed Act.
The respondent then referred to the explanatory memorandum of section 93 of the EMDG Act, which indicates that the creation of a new business should not limit the number of grants payable. From this section 94 of the EMDG Act was developed, “the focus is on the business carried on by another person, whether or not that other person is a ‘new’ person or an existing person.”
Section 94 of the Act involves two tests, firstly where a person carries on a business of part of the business pursuant to subparagraph 94(1)(b)(i), secondly where there is similar to the business of part of the business, the business will be treated as a continuation pursuant to subparagraph 94(1)(b)(ii). This “test” was developed in Isaac Jewellery Pty Ltd and Australian Trade Commission (No.2).[91]
[91] (2009) 113 ALD 159; [2009] AATA 713.
The respondent submits that it is clear from the words of the EMDG Act that the test in section 94 of the EMDG Act requires only a part of the business to be carried out by the new business, or be similar to part of the old business.
The respondent relies upon the decision of this Tribunal in The Eight Modern Chinese Restaurant Pty Ltd and Australian Trade Commission [2014] AATA 923. The respondent submits that if a business has the same owners as the new business that the business falls within the definition of a continuation of a business in section 94 of the Act.
The respondent contends that FMTV and FMI have common directors, shareholders and overseas representatives. The two businesses have a premise in common. FMTV and FMI sell similar products, where FMTV pays to FMI royalties for each view under an informal agreement. FMI also sells stock which FMTV purchases. As such, the two businesses also have common customers and suppliers.
The respondent contends that FMTV acknowledges that there are similarities between FMTV and FMI in its contentions:
The Applicant asserts that Permacology Productions was set up to produce and market independent movies sold on DVDs, whereas the Applicant provides a range of licensed content via a subscription streaming service.
The respondent relies on the matter of Anthony James Magee and Australian Trade Commission [1994] AATA 364. This matter determined that technological and other advances which differentiate particular businesses did not necessarily preclude a business from being a continuation of the other business. The reasoning in Anthony James Magee and Australian Trade Commission [1994] AATA 364 was accepted in the matter of Amlink Technologies Pty Ltd and Australian Trade Commission [2005] AATA 359.
The respondent contended that at the hearing it was demonstrated that:
·FMI had intellectual property which was transferred to FMTV with no cost;
·FMI paid the expenses for the overseas representatives for FMTV;
·Both companies hold activity over the Hurom Juicer or selling DVDs; and
·Both companies are promoting and marketing a number of same titles.
The Respondent submits that “FMI registered and bought the IP so that it could trade as the owner of that IP; when FMTV took over the rights to that IP, it began carrying on the business previously carried on by FMI.”
The respondent refers to the decision under review which states “As advised by the applicant, 85% of the content in its service is non-Australian in origin which requires the payment of royalties and licensing fees to overseas Intellectual Property (IP) owners for the right to use overseas customers.” The respondent submits that from this information FMTV does not provide Australia with a significant net benefit as required under subsection 25(4) of the EMDG Act.
In the matter of ACI Pet Operations Pty Ltd v Comptroller-General of Customs,[92] the term “significant” was taken to mean “not unimportant or trivial” or “sufficiently large to be important”.
[92] (1990) 26 FCR 531.
The respondent relies on the matter of Allocated Bullion Exchange Limited and Australian Trade and Investment Commission [2016] AATA 939, in which Senior Member Davies determined that a significant net benefit should be received for the grant year, not for pending future benefit.
FMTV’s business consists of broadcasting video content. The respondent submits that FMTV should not be assessed under section 25 of the EMDG Act at all, rather FMTV should be considered under section 26 of the Act or section 27 of the EMDG Act, for eligibility of intellectual property or know-how.
The respondent submits that even if FMTV were assessed under sections 26 and 27 of the Act, FMTV would still not be eligible. The majority of FMTV’s content is non-Australian and all content is hosted on overseas servers and platforms.
The respondent submits:
On 19 July 2006, the Minister for Trade issued the Export Market Development Grants (Change in Ownership of Business) Guidelines 2006. To the extent that the guidelines are relevant to the exercise by the CEO of any of his or her powers or functions under the EMDG Act, the CEO must comply with them.
The respondent submits that the 2006 Guidelines apply as the application was made prior to 1 July 2016, noting that the Guidelines were amended on 1 July 2016.
If FMTV is assessed under section 25(4) of the EMDG Act FMTV must meet paragraph 4.2.2 of the Administrative Guidelines, which provides:
In assessing the eligibility of services, Austrade will take into account:
·the value of the project
·the value of the Australian inputs compared with overseas inputs
·the nature of the inputs, such as professional staff compared to labourers
·the underlying intellectual property or know how involved
·employment generated in Australia
·net foreign exchange earnings
·any other notable factors.
The respondent considered the value of the project, however, the respondent determined that no significant net benefit for Australia was evidenced as 85 percent of the content was non-Australian. The respondent submits that though the business may employ Australian employees, in their capacity in the company they are promoting a non-Australian product, therefore Australia received only a small benefit.
ORAL EVIDENCE
During the hearing of this application, documents which could be regarded as “material documents” within the meaning of section 38AA of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) were tendered without being previously filed with the Tribunal in accordance with the relevant Practice Direction for the lodgement of documents.[93] These documents were only admitted either with the consent of the applicants or without any objection.
[93] Practice Direction: Lodgement of Documents under Sections 37 and 38AA of the AAT Act, Justice Duncan Kerr, President, 30 June 2015.
One of the issues in these applications is whether the business conducted by FMTV is a continuation of the business conducted by FMI. Mr James Colquhoun, a director of both FMI and FMTV gave evidence regarding both applicants on both days of the hearing.
Mr Colquhoun
At the hearing, Mr Colquhoun was asked, in the context of the respondent’s contention that FMTV is a continuation of FMI, to describe what FMI did and what FMTV did; Mr Colquhoun stated:
[FMI] was initially started to produce documentary film. We produce that in Australia and market it internationally and it gained a reasonable audience in the US and Canada, in particular. The film focuses a lot on health and nutrition and natural medicine and helping people make better decisions for their health and we further went on to produce film in that company called Hungry for Change. Again, we then went overseas to market that film, partnered with distributors who helped take that film into the marketplace and we received a net benefit and a return from producing those films.
Mr Colquhoun, in giving evidence, stated that FMI was first incorporated under the name “Permacology Productions Pty Ltd” in September/October 2007. Mr Colquhoun stated that the company had produced two films. The first film was “Food Matters” which was launched in 2008. The second film was “Hungry for Change” which launched in about 2011. Mr Colquhoun stated that the films focused on the topics of health and nutrition and natural medicine and helping people make better decisions for their health.
Mr Colquhoun stated that the films are marketed internationally. He stated that people were employed in Australia and he went overseas to market the films and he partnered with distributors who put the films in the marketplace. Mr Colquhoun gave evidence that FMI (then, Permacology Productions Pty Ltd) received a net benefit and a return from producing those films which gained a “reasonable audience” in the United States and Canada.
Mr Colquhoun stated that, in the United States, “Netflix” was coming on the scene in 2012. FMI was selling the films to Netflix. He stated that he set up FMTV to provide a SVOD service to distribute content. Mr Colquhoun distinguished FMI from FMTV by stating FMI is a “little bit like” a motor car manufacture and the SVOD service provided by FMTV is a “little bit like” “Hertz” or a rental car company. He stated that there are multiple pieces of content available on the SVOD service but it's more of a rental/distribution model as opposed to a manufacturing model.
Mr Colquhoun referred to content “curation” which was a process developed internally to vet content in order to determine its suitability for the SVOD service provided by FMTV. He remarked that the curation process was implemented to ensure that every piece of content that was signed and released on the SVOD service was specifically tailored to outcomes on which FMTV focused such as weight loss and natural healing from chronic disease, stress reduction, etcetera, and therefore, that would be of significant value in the marketplace with reference to the health challenges of the population. This curation is performed in-house by a team employed in Australia which assesses content based on its suitability for the SVOD service provided by FMTV.
Mr Colquhoun referred to the library of the SVOD service provided by FMTV which distributes a variety of films, recipe video series, yoga and exercise classes, meditation, stress reduction classes, expert interviews, and unique guided programs which he stated formed a completely different offering compared to FMI. Mr Colquhoun remarked that the SVOD service provided by FMTV is the result of a strict curation of content to provide people with access to information about how they can improve their health and quality of life.
Mr Colquhoun was referred to paragraph 9 of his affidavit[94] where he stated that FMTV is one of the few dedicated health and wellness SVOD services in the world and, as far as he knew, the only one in Australia. He remarked that in the SVOD service landscape, “Netflix” and “Hulu” were early to the market and have become dominant global players but there are a number of “niche” SVOD services now available globally. He stated that FMTV is one of the only SVOD services in the world that specialises in health and wellness and there is one “quasi competitor” in the US but it specialised more in spirituality than in health.
[94] Exhibit C.
Mr Colquhoun was asked to explain why the FMTV’s marketing process is sophisticated and unique. He answered that he studied “a lot of internet marketing” to be able to bring about the SVOD service. He stated that a lot of typical large SVOD services will simply purchase advertisements, billboards and online advertising. He stated that, being a small player with a team in Australia that is marketing to a US customer base primarily, FMTV needed to be innovative in the way that it delivered and marketed its SVOD service to the world, including by running online events for free. Mr Colquhoun remarked that one of the of concepts of internet marketing is the law of reciprocation which can generate a lead. He remarked that if someone uses an email address to sign up to attend a free event, then at the end of this free event FMTV essentially offers them the opportunity to: upgrade and become a subscriber of the SVOD service; become part of the community; and have access to the SVOD service for as long as they are an active subscriber.

However, it is the events preceding the conceptualisation of the Food Matters TV SVOD service and the formation of the FMTV corporate personality which present difficulty, in the respondent’s view, for FMTV in its application for payment of a grant for the 2013/2014 grant year.
In giving evidence, Mr Colquhoun stated:[142]
… we started FMTV really with a – as a side project with some of our developers that we assigned to that project. Obviously in any start-up, one idea might work, one might not, so I put a small team on to the project of building FMTV, and then preparing it for a launch and stayed on in my capacity in the US in promoting – promoting Permacology Productions and Publishing, and then after it launched and became economical then I started sort of drawing a salary per se out of that business…
[142] Transcript, 16.05.18, p. 33.
The respondent drew attention to the fact that in 2008, the address of the website of FMI, then Permacology Productions Pty Ltd, was “ The respondent put to Mr Colquhoun that “the trading name or the website address [FMI] had at that time was this idea which is Food Matters TV in its current form”.[144] Mr Colquhoun responded: “In 2008, I don’t know that we would have imagined a [SVOD] platform emerging out of this business. I think we could understand that online was an important part”.
[143] Transcript, 16.05.18, p. 18.
[144] Transcript 16.05.18, p. 19.
As to why the website of FMI was “ at that time, Mr Colquhoun explained: “We couldn’t purchase the .com at the time, it was held by some gentleman unfortunately which we have since been able to acquire, so if you go online and go to foodmatters.tv it will actually redirect to foodmatters.com”. I appreciate that the internet domain suffix “.tv” is the internet country code top-level domain for the nation of Tuvalu.
I consider, however, having regard to the evidence of Mr Colquhoun, that it is plausible that FMI acquired the “.tv” website address as a compromise when FMI’s first preference would have been for the “.com” address. The plausibility of this explanation is reinforced by the fact that FMI now owns both website addresses and the “.tv” address now redirects to the “.com” website address. Having regard to this explanation which was not challenged, it would not be fair to conclude that the “.tv” website address of FMI is indicative of FMI having carried on the business that FMTV now carries on.
The respondent drew attention to the evidence of Mr Colquhoun that prior to the formation of the FMTV corporate entity, FMI registered certain trade marks in its name which eventually formed part of the assets of FMTV in providing its SVOD service. Mr Colquhoun gave evidence that these trade marks registered by FMI were subsequently transferred at no cost from FMI to FMTV prior to the commencement of the 2013/2014 grant year, following the registration of FMTV as a corporate entity on 12 June 2013. Mr Colquhoun denied that any of the earnings reported, or costs claimed, by FMI in its application for a grant for the 2014-2015 grant year related to intellectual property registered by FMI which was subsequently transferred to FMTV.
The respondent put to Mr Colquhoun that if a dispute regarding the trade marks registered by FMI had arisen prior to their assignment to FMTV, it would be FMI that would have been the entity to take any course of action in respect of such a dispute. Mr Colquhoun did not object to the respondent’s suggestion and provided the following explanation for registering the trade marks in the name of FMI in first instance:[145]
… to not incur set-up costs as an entrepreneur, and to be able to defer them after making money, is obviously a very prudent decision, and something I would have made at the time if I got advised that we can do the company set up and move the IP before the end of the tax year, and after the company’s brought some revenue in in order to be able to offset those costs I would have definitely made those decisions. Even without consultation to grant ramifications, I was more talking about an entrepreneurial cash flow perspective…
My understanding was we registered the IP in Permacology Productions initially because we already had that entity… And we didn’t want to incur extra costs, and then as soon as we came to the end of the tax year, our accountant’s like, “Now you’ve got to set up those documents before June 30, otherwise it’s not going to be a separate company”, which was very important for us…
Yes, and basically from the advice that I understood they said, “Don’t worry about setting up the separate company to start with. Use your existing entity to purchase, or to register your trademarks, and before you do your first lodgement, then you can assign the trademarks without any cost incurred because there’s no registered income, and that won’t affect -it’s not - it won’t affect the company from a tax position and it will defer your costs as closely as possible to June 30.
[145] Transcript 16.05.18, pp. 34-35, 38.
As to when the trade marks were transferred from FMI to FMTV Mr Colquhoun stated: “It was before the end of the tax year”, being the 2013/2014 tax year.[146] Mr Colquhoun stated that the assignment of the trade marks from FMI to FMTV occurred within 12 months of the registration of FMTV as a company.
[146] Transcript, 16.05.18, p. 38.
No direct documentary evidence has been placed in evidence before me by either party which corroborates or contradicts the registration by FMI, or assignment to FMTV, of any particular trade marks on any particular dates. The respondent did not dispute Mr Colquhoun’s evidence as to the registration and assignment of the trade marks and did not seek leave to obtain further evidence in relation to these trade marks.
It was put to Mr Colquhoun that FMI registered the trade marks in order to trade as the owner of those trade marks; Mr Colquhoun denied this and explained:[147]
…we used [FMI] to, at the launch of a new company, as it was an existing entity simply as an entity to be able to launch trademarks and so forth and then by the end of the tax year put everything into the new entity. It was more just a convenience perspective from an entrepreneurial point of view…
… It’s always been our intention that these two businesses were completely different, so although there was a lag with the IP in terms of [FMI] making the application and then transferring that IP to FMTV, all costs involved in marketing staff, team, etcetera got properly invoiced and accounted across to FMTV as a separate entity.
[147] Transcript, 16.05.18, pp. 38-39.
I must consider whether the registration by FMI of trademarks which were subsequently transferred to, and used by, FMTV is evidence that FMI carried on the business which FMTV now carries on.
Mr Colquhoun, in giving evidence, stated that the order in which the registration of the trade marks and the formation of the company took place was due to advice that Mr Colquhoun received in relation to setting up the FMTV company and simplifying its affairs from a tax perspective by deferring costs to the end of the 2012-2013 tax year. There was no documentary evidence tendered to confirm the advice upon which Mr Colquhoun and FMI acted.
I am prepared to accept, however, that it is commonly understood that the subject matter of a trade mark, once created, should be registered as soon as practicable. Subsection 20(3) of the Trade Marks Act 1995 (Cth) provides that the rights connected with the registration of a trade mark “are taken to have accrued to the registered owner as from the date of registration of the trade mark”; therefore, time is certainly of the essence. I consider it plausible that Mr Colquhoun considered it important to register the trade marks as soon as practicable and that he believed this could be on behalf of FMTV by FMI prior to the registration of FMTV as a company.
The evidence of Mr Colquhoun may raise a contention that FMI, in registering the trade marks, was acting as an agent for FMTV. However, there is the issue of whether FMI could have registered the trade marks on behalf of a company that did not exist at the time of the registration of the trade marks.
At general law person cannot act as an agent for a principal that does not exist. A non-existent person, whether a natural person or a company, cannot have rights or duties, pay or receive money, or incur liability. However, the general law has been modified by statute in limited situations for certain conduct undertaken prior to the registration of a company.
Subsection 131(1) of the Corporations Act2001 (Cth) provides:
131 Contracts before registration
(1)If a person enters into, or purports to enter into, a contract on behalf of, or for the benefit of, a company before it is registered, the company becomes bound by the contract and entitled to its benefit if the company, or a company that is reasonably identifiable with it, is registered and ratifies the contract:
(a)within the time agreed to by the parties to the contract; or
(b)if there is no agreed time—within a reasonable time after the contract is entered into.
I have considered the possible application of subsection 131(1) of the Corporations Act 2001 (Cth), however, I consider that it has no application to this application.
First, I do not consider that an application for registration of a trade mark can appropriately be construed as a contract. An application for registration of a trade mark is the exercise of a right within a statutory scheme created by the Trade Marks Act 1995 (Cth) and is not governed by the law of contract.
Secondly, there is no documentary evidence before me of the formation of any contract between FMI and any person in existence prior to the registration of FMTV as a company which provided for FMI to register trademarks on that person’s behalf, for example, Mr Colquhoun. Indeed, Mr Colquhoun, in his statement dated 1 June 2017,[148] stated that there were no formal agreements between FMI and FMTV and this appears to be the case in respect of the registration of the trade marks.
[148] Exhibit D.
Therefore, I consider that FMI registered and held the trade marks in its own name until they were assigned to FMTV.
On 22 March 2019, the respondent, with the consent of FMTV, drew to my attention the Tribunal’s decision in Allmaster Software Pty Ltd and Australian Trade and Investment Commission, Re [2019] AATA 506. In that application, the applicant, Allmaster Software Pty Ltd, was a supplier of its own kitchen design software which it had developed. The applicant had purchased a particular division of another company which included intellectual property pertaining to older software and had sought to carry on that part of the business as a provider of that computer software which was also for the purpose of designing kitchens. This did not ultimately eventuate as the software the applicant purchased continued to perform poorly in the market. In that application, there was a clear indication that the applicant had carried on the business of the previous owner and therefore the applicant was affected by the operation of subparagraph 94(1)(b)(i) of the EMDG Act. I note a number of distinctions between that application and the present application, for instance, there was a contract for the sale of the intellectual property for a consideration of $280,000 between the previous owner and the new owner and there was clear evidence that the previous owner had carried on the business which was carried on by the new owner. I consider the facts of the present application to be different in that there was no sale of a business.
Findings as to Test 1: subparagraph 94(1)(b)(i)
While I am satisfied that FMI registered trade marks in its own name that were ultimately used in connection with the business that was carried on by FMTV, I do not consider this to be an indication that FMI carried on that business. There is no compelling evidence before me that FMI utilised these trade marks in connection with its business or its website. The only connection that has been established to FMI is a connection to the website address of the website of FMI which as I have observed earlier, was registered as a compromise and now redirects to the “.com” address.
There is no cogent evidence before me to allow me to conclude that FMI carried on the business of supplying a SVOD service at any time, which I have earlier observed is the business that is carried on by FMTV. The extent of FMI’s involvement with video material is as a content creator of documentaries and videos on social media, and as a re-seller of DVD format content. There is no evidence before me that FMTV has done either of those things, and further, there is no evidence that FMI stopped doing these things when FMTV came into existence.
Therefore, I am not satisfied that there has been a change in ownership of business in accordance with paragraph 94(1)(b)(i) of the EMDG Act. Consequently, I must now turn to considering whether the business that is carried on by FMTV falls within the meaning of Test 2.[149]
[149] Administrative Guidelines, paragraph 8.2.1(a) “It is only necessary to go to the second test if the answer to the first is ‘no’”.
Paragraph 94(1)(a) in terms of Test 2: subparagraph 94(1)(b)(ii)
In determining whether two businesses are similar for the purposes of Test 2, I must comply with the guidelines made by the Minister under paragraph 101(1)(d) of the EMDG Act which provides that the Minister must determine, by legislative instrument:
guidelines to be complied with by the CEO in determining, for the purposes of subparagraph 94(1)(b)(ii), whether a business or a part of a business (the old business) that was carried on by a person is similar to a business (the new business) being carried on by another person to such an extent that the new business should be treated as a continuation of the old business.
On 19 July 2006, the then Minister for Trade made the Export Market Development Grants (Change in Ownership of Business) Guidelines 2006 (Cth) (“the 2006 Guidelines”). Although there is currently in force the Export Market Development Grants (Change in Ownership of Business Guidelines 2016 (Cth) (“the 2016 Guidelines”), the respondent has correctly submitted that the relevant guidelines are the 2006 Guidelines, having regard to section 5 of the 2016 Guidelines which provides:
5 Revocation and savings
(1)The Guidelines made under paragraph 101 (1) (d) of the Act on 19 July 2006 is revoked.
(2)However, those Guidelines continue to apply to an application for a grant in respect of a grant year commencing before 1 July 2016.
The application by FMTV was made in 2014 and therefore, is subject to the 2006 Guidelines.
Section 4 of the 2006 Guidelines provides:
4 Change in ownership of business
(1)In determining, for the purposes of subparagraph 94 (1) (b) (ii) of the Export Market Development Grants Act 1997, whether a business or a part of a business (the old business) that was carried on by a person is similar to a business (the new business) being carried on by another person to such an extent that the new business should be treated as a continuation of the old business, the CEO of Austrade must comply with these Guidelines.
(2)In determining whether the new business is similar to the old business, the CEO of Austrade must have regard to the similarities (if any) and the differences (if any) between:
(a)the product of the new business and that of the old business; and
(b)the activities that are carried out in the course of the business of the new business and the activities that were carried out in the course of the old business; and
(c)the customers, including the export market customers, of the new business and those of the old business; and
(d)the directors, shareholders, and management personnel of the new business and those of the old business; and
(e)the suppliers to the new business and those to the old business; and
(f)the overseas representatives of the new business and those of the old business; and
(g)the employees of the new business and those of the old business; and
(h)the markets, including the export markets, of the new business and those of the old business; and
(i)the premises from which the new business is conducted and the premises from which the old business was conducted; and
(j)the logo of the new business and that of the old business; and
(k)the property and assets, including the intellectual property, of the new business and those of the old business.
I will address each of these criteria. In final submissions, the parties did not make submissions on all of the criteria.
The product of the new business and that of the old business
In the relevant grant year, it would appear that the products of FMI were various health and well-being products such as superfood greens, as well as health DVDs and the films it had produced being “Hungry for Change” and “Food Matters”. As previously mentioned, FMTV supplies a SVOD service which has a focus on health and well-being content.
I consider that, broadly speaking, there is a thematic overlap in the products offered by FMI and FMTV in that they generally fall within similar genres. In his statement dated 3 April 2017, Mr Colquhoun stated that the FMTV library consists of six “main content verticals” including: “Documentaries”, “Recipe videos”, “Yoga and exercise classes”, “Mediation [sic] and stress reduction classes”, “Expert interviews”, and “Unique guided programs”.[150] In that same statement, Mr Colquhoun remarked that FMI “focusses on creating free content and resources on topics pertaining to health and wellness. There is a particular emphasis on nutrition, natural healing and sustainability”. Mr Colquhoun remarked that some key products on the FMI website included: “Recipes”, “Articles”, “Practitioner Directory”, “Retreats Directory”, and “Wellness guides”.[151]
The activities that are carried out in the course of the business of the new business and the activities that were carried out in the course of the old business
[150] Exhibit C, paragraph 4.
[151] Exhibit C, paragraph 26.
FMI, in the course of its business, appears to primarily operate an e-commerce website, namely, “foodmatters.tv”, which now redirects to “foodmatters.com”. FMI also produces articles on health and well-being and recipe books, both physical and digital, which generally have a connection to the products available for purchase on its website. FMTV, in the course of operating its business in the relevant year, maintained a website “ through which its customers could access the SVOD service. FMTV carries out a curation process through which it selects content to be available through the SVOD service and in doing so, engages rights holders to enter into agreements for the rights to make their content available for streaming.
The customers, including the export market customers, of the new business and those of the old business
I accept the contention of the respondent that certain titles available in DVD format were available for purchase on the FMI website, which were also available for streaming on the FMTV SVOD service, for example, “Fat Sick and Nearly Dead”, “Food Matters” and “Hungry for Change”.
As earlier mentioned, it was put to Mr Colquhoun, when he was recalled on the second day of the hearing, that there was a link from the “Contact us” part of the website of FMI to the website of FMTV. Mr Colquhoun was unable to either confirm or deny that this was the case during the relevant grant year. Ms Ward, in giving evidence, conceded that there may be some link between the websites. In these circumstances, the Tribunal has inferred that the link did probably exist.
This criterion requires the Tribunal to make an assessment of information that would be in the possession of both applicants. Mr Colquhoun and Ms Ward, in giving evidence, have both confirmed the existence of email lists and social media followings of both FMTV and FMI. These have not been disclosed in order to assist the Tribunal in the task of assessing this criterion. However, FMTV has quite properly acknowledged that there is some overlap of the customers.
The directors, shareholders, and management personnel of the new business and those of the old business
Directors

The directors of FMI and FMTV are the same two people, namely, Mr Colquhoun and Ms ten Bosch. In his statement dated 3 April 2017, Mr Colquhoun stated that he was the “Sole Director” of FMTV. The Tribunal notes Mr Colquhoun later corrected this statement in his statement dated 1 June 2017 in which he stated he is a “co-director of [FMI] with [his] wife Laurentine”.
FMI and FMTV have common directors.
Shareholders
As earlier mentioned in these reasons at paragraph 19, the shareholders of FMI are Mr Colquhoun and Ms ten Bosch.
As earlier mentioned in these reasons at paragraph 19, the shareholding of FMTV appears to consist of one ordinary share held by the company JCLTB No 1 Pty Ltd. The shares in JCLTB No 1 Pty Ltd are held by Mr Colquhoun and Ms ten Bosch.
FMI and FMTV have common shareholders
Management personnel
FMTV conceded that there were similarities in the managers of FMTV and FMI.[152]
[152] FMTV’s Statement of Facts, Issues and Contentions, paragraph [32].
The suppliers to the new business and those to the old business
The respondent, in its Statement of Facts, Issues and Contentions, submitted that FMTV:[153]
has not disclosed how many “affiliates” apart from [FMI] it has, or the proportion of the products that [FMTV] streams that are sourced from other companies. [FMTV] has not disclosed the extent of its relationships with other film makers or other “whole sale customers”
[153] Respondent’s Statement of Facts, Issues and Contentions (FMTV), paragraph [42].
The applicant has not provided any evidence in response to this contention. There were statements made at the hearing that 85% of the content hosted on the SVOD service was foreign content, however, no evidence disclosing the identities of those suppliers was provided.
As earlier mentioned, there was some degree of similarity between the titles available on DVD through the FMI website and the titles available for streaming on the SVOD service. I recognise that the content available on the SVOD service appears to be far greater in volume, however, it is probably that there is some overlap in the suppliers of FMI and FMTV.
The overseas representatives of the new business and those of the old business
FMI and FMTV have common overseas representatives, namely Mr Colquhoun and Ms ten Bosch.
The employees of the new business and those of the old business
The only employees in the relevant grant year of FMTV appear to be the directors. They are named in the grant application which disclosed a total of two employees of FMTV at the end of the relevant grant year.[154] FMI, on the other hand, disclosed a total of 12 employees at the end of the relevant grant year.[155]
[154] Exhibit B, T-Documents, T5, p. 30.
[155] Exhibit A, T-Documents, T7, p. 22.
There are common employees of FMTV and FMI in that in the relevant grant year the only two employees of FMTV were also employed by FMI.
The markets, including the export markets, of the new business and those of the old business
This criterion requires the Tribunal to make an assessment of information that would be in the possession of both applicants. There was no direct evidence led as to the exact markets of both FMI and FMTV. From the evidence of Mr Colquhoun, it would seem that the export markets of FMI and FMTV include the United States, Canada. There is also evidence that FMI markets to Australia and New Zealand and expenses in relation to marketing to these countries had been deemed ineligible by the respondent in previous grant applications.
In giving evidence, Mr Colquhoun contended that the market for the FMTV SVOD service is global.
FMTV conceded that the markets of FMI and FMTV did overlap to a certain degree.[156]
The premises from which the new business is conducted and the premises from which the old business was conducted
[156] FMTV’s Statement of Facts, Issues and Contentions, paragraph [31].
As earlier mentioned in these reasons in paragraph 19, FMTV and FMI operate from common premises. This is evidenced not only by the ASIC records but also in invoices from FMI to FMTV in relation to use of the premises which were provided with the grant applications.
The logo of the new business and that of the old business
The Macquarie Dictionary provides the following relevant definitions of “logo”:[157]
A trade mark or symbol designed to identify, organisation, etc…
“Logo” is also defined as meaning:
A word element denoting speech.
[157] (Macquarie Library, 4th ed., 2005) p. 841.
In assessing this criterion, it is legitimate to note that there is a similarity between the names of the websites of FMI and FMTV being “foodmatters.tv” (now “foodmatters.com”) and “fmtv.com”. Both have common elements namely “fm” being a reference to “food matters”. I have earlier in these reasons referred to the “.tv” domain name suffix of the website of FMI and how I do not consider to be an indication of a change in the ownership of the business under Test 1. That being said, I am conscious of the visual and phonetic likeness of both website addresses.
I also consider the name of the business to be relevant under this criterion. The respondent has contended that:[158] “On 4 December 2014, Permacology Productions itself ceased to exist as a business name and FMI came into existence”. This statement does not accurately reflect the process of change of name of the body incorporated under the Corporations Act 2001 (Cth) that occurred on 4 December 2014. What had occurred on 4 December 2014 was that there was a change of name of the corporate entity; to say that the corporate entity known as FMI then “came into existence” is apt to mislead. On 4 December 2014, the company Permacology Productions Pty Ltd, which was registered with ASIC on 8 October 2007, merely changed its name to Food Matters International Pty Ltd.
[158] Respondent’s Statement of Facts, Issues and Contentions (FMI).
I recognise that this change of name of the company now referred to as FMI occurred after the conclusion of the relevant grant year and they were therefore distinct at that time.
I also note “Food Matters” was the name of the first documentary film produced by FMI in 2008. It goes without saying that the name of that documentary has a resemblance to the name of the company “Food Matters TV Pty Ltd”.
The property and assets, including the intellectual property, of the new business and those of the old business
This criterion requires the Tribunal to make an assessment of information that would be in the possession of both applicants.
The Tribunal presumes that any physical assets of FMI are owned by FMI and that FMTV does not have an interest in those assets. FMTV came into operation during the relevant grant year.
The balance sheet for FMI as at 30 June 2014 indicates the assets held by FMI consisted of cash, loans owed to FMI and stock on hand of DVDs.[159] The balance sheet for FMTV as at 30 June 2014 indicates the assets held by FMTV consisted of cash and cash equivalents, along with $31,108 in “Property, plant and equipment”.[160] There is no apparent overlap in the ownership of these assets.
[159] Exhibit A, T-Documents, T17, p. 44.
[160] Exhibit B, T-Documents, T34, p. 131.
In the application by FMI for a determination by the respondent that the Hurom Juicer was an eligible good, FMI posited that the Australian asset involved was the mailing list used to market their products. It was observed during the cross-examination of Ms Ward that a “goodwill” asset was not disclosed in any balance sheets and Ms Ward declined to value goodwill. Ms Ward, in giving evidence, stated that there were separate mailing lists for FMI and FMTV, but conceded that there may be some link between the websites. While no direct evidence was provided as to the goodwill assets, I consider it probable that there is some overlap between these.
As earlier mentioned, there was a dearth of documentation before the Tribunal recording the registration or assignment of any intellectual property.
Mr Colquhoun, in his statement dated 3 April 2017, stated that:
FMTV has also invested over $100,000 in custom built app or apps for iOS (apple), apple TV and roku the global leader in TV streaming device mark which enables us to offer FMTV as to many different types of customer globally as possible.[161]
[161] Exhibit C, paragraph 31.
However, in that statement, there is no reference to the intellectual property of FMTV.
FMTV appears to be in possession of the necessary assets, both tangible and intangible, in order to deliver a SVOD service, while FMI does not appear to have that capability.
Findings as to Test 2: subparagraph 94(1)(b)(ii) of the EMDG act
Having regard to the evidence before me, I find that the business of FMTV is similar to the business of FMI in terms of subparagraph 94(1)(b)(ii) of the EMDG Act. FMTV has properly contended that there are similarities between FMI and FMTV. FMTV has contended that there are similarities in the companies being the directors, managers and employees of both companies. I accept this contention. I also have had regard to the fact that both companies operated from the same premises during the relevant grant year. FMTV has quite properly contended that there is overlap between customers and markets to a certain degree. I am conscious that subparagraph 94(1)(b)(ii) of the EMDG Act requires me to consider whether there was a part of the old business carried on by the previous owner. I consider that the fact that FMTV market the films “Hungry for Change” and “Food Matters”, albeit in a different technological manifestation, leads me to conclude that FMTV are supplying films to customers that were previously supplied to customers in DVD format by FMI.
IMPACT ON GRANTEE OF SECTION 94 OF THE EMDG ACT
The respondent submitted at the hearing that the application by FMI for a grant for the 2013/2014 was a “year 6” application. The respondent appeared to then submit that, if the grant was made to FMI, the application by FMTV for a grant for the 2013/2014 grant year should be considered to be a “year 7” grant application. No submissions have been made by FMTV in regard to this issue and it would be appropriate to afford procedural fairness to FMTV by giving FMTV an opportunity to make any submissions as to this issue.
CONCLUSION
I wish to record that the Tribunal finds that the non-tourism service supplied by FMTV has significant net benefit for Australia. I have, however, earlier mentioned that I have determined that FMTV is subject to subsection 94(2) of the EMDG Act.
As earlier mentioned, in these reasons, section 9 of the EMDG Act relevantly provides that if a grant applicant who is a grantee in respect of two or more previous grant years chooses “grants option B”, the CEO of Austrade must decide whether the applicant meets the Australian net benefit requirements in relation to the grant year, which guidelines may be determined by the Minister under section 10 of the EMDG Act for a grant year. During the hearing, the Tribunal was advised by the respondent of these performance requirements.
As there is no evidence or submission before the Tribunal as to whether there has been an election by FMTV between Grants Option A and Grants Option B, it would be fair to FMTV to remit application no. 6313 of 2016 to the respondent for further consideration having regard to the findings of the Tribunal. This course of action would enable FMTV to make any appropriate election to the respondent if warranted.
In application no. 4497 of 2016, I will affirm the decision under review.
DECISION
I affirm the decision under review in application no. 4497 of 2016 by Food Matters International Pty Ltd (formerly Permacology Productions Pty Ltd).
I set aside the decision of the respondent dated 11 November 2016 in application no. 6313 of 2016 by Food Matters TV Pty Ltd and remit the application to the respondent for reconsideration in accordance with these reasons.

I certify that the preceding 327 (three hundred and twenty seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

…………………………………………..
Associate
Dated: 27 August 2020

Dates of Hearing:
16-17 May 2018

Final submission received: 22 March 2019

Solicitor for the Applicants Mr Hendrik de Korte, TdK Law

Solicitor for the Respondent: Mr Leonard Leerdam, Mills Oakley

Year	Grant Amount
2008/2009	$67,616
2009/2010	$42,250
2010/2011	$52,735
2011/2012	$50,679
2012/2013	$124,116

Food Matters TV Pty Ltd (FMTV)	Food Matters International Pty Ltd (formerly Permacology Productions Pty Ltd) (FMI)	JCLTB No 1 Pty Ltd
Incorporation	12 June 2013	8 October 2007
Operation	Unit 208, 45 Brisbane Road, Mooloolaba, Queensland 4557	Unit 208, 45 Brisbane Road, Mooloolaba, Queensland 4557
ABN	16 164 229 341	47 127 885 223
ACN	164 229 341	127 885 223	164 152 523
Directors	James Colquhoun and Laurentine ten Bosch	James Colquhoun and Laurentine ten Bosch	James Colquhoun and Laurentine ten Bosch
Secretary	James Colquhoun since 12 June 2013	Laurentine ten Bosch	James Colquhoun
Shares	1 ordinary share held by JCLTB No 1 Pty Ltd	200 ordinary shares, James Colquhoun 50% and Laurentine ten Bosch 50%	James Colquhoun and Laurentine ten Bosch
		10 Class A shares issued owned by James Colquhoun
		10 Class B shares issued owned by Laurentine ten Bosch

Column 1 Item	Column 2 Activity	Column 3 Expenses
1A	maintaining one or more overseas representatives on a long term basis in foreign countries to the extent to which the representatives are maintained for approved promotional purposes	all reasonable expenses incurred by the applicant in: (a) maintaining the representatives; and (b) meeting the expenses incurred by the representatives in soliciting business for the applicant; Up to a limit of: (c) if the applicant is a grantee in respect of any previous grant year—$200,000 for the grant year; or (d) if the applicant is not a grantee in respect of any previous grant year—$200,000 for the grant year and the immediately preceding year
4	the provision, primarily for an approved promotional purpose, of free samples to a person that is not a resident of Australia, as follows: (a) provision outside Australia of samples relating to any eligible product of the applicant; (b) provision in Australia of samples relating to eligible tourism services supplied by the applicant	all reasonable expenses incurred by the applicant that are attributable to the actual cost of providing the samples up to any applicable limit for the applicant in relation to a grant year
6	provision by the applicant or its agent of promotional literature or other advertising material (whether the literature or material is in electronic form or any other form) to the extent to which this is done for an approved promotional purpose	all reasonable expenses incurred by the applicant in payments to persons that, in the opinion of the CEO of Austrade, were not closely related to the applicant

Dates	Non AU Revenue	Non AU Royalties	Net Benefit to AU
Jan-Jun 2014	$882,591	$137,733	$744,858
Jul-Dec 2014	$562,631	$95,528	$467,103
Jan-Jun 2015	$1,028,457	$162,733	$865,724
Jul-Dec 2015	$843,513	$150,368	$693,145
Jan-Jun 2016	$1,485,604	$182,448	$1,303,156
Jul-Dec 2016	$1,029,995	$126,621	$903,374
Jan-Jun 2017	$1,118,860	$138,110	$980,750
Jul-Dec 2017	$1,162,268	$154,822	$1,007,446
Total	$8,113,919	$1,148,363	$6,965,556

Dates of Hearing:	16-17 May 2018
Final submission received:	22 March 2019
Solicitor for the Applicants	Mr Hendrik de Korte, TdK Law
Solicitor for the Respondent:	Mr Leonard Leerdam, Mills Oakley