Food Matters International Pty Ltd (formerly Permacology Productions Pty Ltd) and Australian Trade and Investment Commission (Austrade)

This matter concerned applications by Food Matters International Pty Ltd (formerly Permacology Productions Pty Ltd) and Food Matters TV Pty Ltd (together, the applicants) for export market development grants under the *Export Market Development Grants Act 1997* (Cth). The Australian Trade and Investment Commission (Austrade) was the respondent. The applications related to the eligibility of goods and services for grants, and whether a change in business ownership affected the applications. The decision was made by Deputy President McDermott of the Administrative Appeals Tribunal.

The Tribunal was required to determine several legal issues. Firstly, it had to consider whether certain goods manufactured overseas and sold overseas were eligible for a grant, specifically whether Australia would derive a significant net benefit from their sale. Secondly, the Tribunal needed to assess whether a particular non-tourism service was eligible, focusing on whether sufficient Australian input ensured Australia would derive a significant net benefit from its supply. Thirdly, the Tribunal had to determine whether a change in business ownership, under section 94 of the Act, meant that particulars of the previous owner should be treated as those of the new owner for a year one application.

In relation to the eligible goods, the Tribunal affirmed Austrade's decision that no significant net benefit for Australia was evidenced, as 85 percent of the content was non-Australian, despite the employment of Australian staff to promote the product. For the eligible non-tourism service, the Tribunal set aside Austrade's decision and remitted the application for reconsideration, indicating that the assessment of Australian input and net benefit required further examination. Regarding the change in ownership, the Tribunal considered the application of section 131 of the *Corporations Act 2001* (Cth) but found it inapplicable to the registration of trademarks, as this was a statutory right rather than a contract. The Tribunal distinguished the present case from a previous decision in *Allmaster Software Pty Ltd*, finding that there was no sale of a business and that the trademarks were registered and held by the original company until assigned.

Consequently, the Tribunal affirmed Austrade's decision in application no. 4497 of 2016 by Food Matters International Pty Ltd. However, the Tribunal set aside Austrade's decision in application no. 6313 of 2016 by Food Matters TV Pty Ltd and remitted that application to Austrade for reconsideration in accordance with the Tribunal's reasons.