Good Earth Oils Pty Ltd and Australian Trade and Investment Commission

This matter concerned an application by Good Earth Oils Pty Ltd for a grant under the Export Market Development Grants Act 1997. The Australian Trade and Investment Commission (the Respondent) had refused the grant. The dispute centred on whether Good Earth Oils Pty Ltd satisfied the eligibility criteria for the grant, specifically whether its business, or a part thereof, was similar to that of Energreen Nutrition Australia Pty Ltd to such an extent that it should be treated as a continuation of Energreen's business. The decision was reviewed by Deputy J Sosso P.

The court was required to determine two primary legal issues. Firstly, whether Good Earth Oils Pty Ltd's business was similar to Energreen Nutrition Australia Pty Ltd's business to warrant being treated as a continuation of the latter. Secondly, the court had to consider whether the phrase "at a later time" in section 94(1)(b) of the Act necessitated a comparison of export sales activity of the applicant shortly after it commenced operations with the export sales of Energreen leading up to that time.

In its reasoning, the court adopted the principles outlined in *Preston SuperAccess Pty Limited and Australian Trade Commission* [2013] AATA 537, which emphasised that the similarity of businesses for the purposes of grant limitations requires a balancing and weighing of various factors, including directors, shareholders, and management personnel, and that variations in products or scale do not necessarily preclude a business from being treated as a continuation of an old one. The court also noted that section 94(1)(b) contains two alternative limbs, each requiring the application of different criteria, and that an applicant fails if it does not satisfy either limb.

Ultimately, the Tribunal found that Good Earth Oils Pty Ltd should be treated, for the purposes of section 94(1)(b)(ii) of the Act, as a continuation of the business of Energreen. Consequently, the decision under review, which refused the grant, was affirmed.