IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-436-00094
[2020] NZHC 109
UNDER The PLANT VARIETY RIGHTS ACT 1987 BETWEEN
ZESPRI GROUP LIMITED
Plaintiff
AND
HAOYU GAO
First Defendant
SMILING FACE LIMITED
Second DefendantXIA XUE
Third Defendant
Hearing: 5, 6, 7, 8, 9 and 12 November 2018
(final submissions received 10 July 2019)
Counsel:
L A O’Gorman, A N Birkinshaw and H H K Yeldizian E St John and S Moore for defendants
Judgment:
10 February 2020
JUDGMENT OF KATZ J
This judgment was delivered by me on 10 February 2020 at 12:30pm pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Buddle Findlay, Auckland
Yu Lawyers, Auckland
Counsel: E St John, Barrister, Auckland
S Moore, Barrister, Auckland
ZESPRI GROUP LIMITED v GAO & ORS [2020] NZHC 109 [10 February 2020]
Table of Contents
Introduction.......................................................................................................... [1]
Background and overview of Zespri’s claims................................................... [4]
Zespri’s development and commercialisation of the G3 and G9 varieties [4]
Haoyu Gao and Xia Xue [9]
Zespri’s concerns that the G3 and G9 varieties were being grown in China [11]
Overview of Zespri’s claims [13]
Infringement of PVR rights - the legal framework........................................ [16]
The Plant Variety Rights Act 1987 [16]
Cropmark Seeds Ltd v Winchester International (NZ) Ltd [23]
Issues of Extraterritorial Application [26]
Witness credibility.............................................................................................. [42] Circumstantial evidence.................................................................................... [46]
Alleged licence and supply of G3 and G9 to Mr Shu..................................... [49]
Hearsay issues - Mr Shu [50]
Mr Gao’s dealings with Mr Shu in 2012 [52]
Mr Gao’s ongoing relationship with Mr Shu [63]
Zespri’s interactions with Mr Shu [68]
Key factual findings [85]
Alleged joint venture with Mr Yu through Liangshan Yi [87]
Mr Gao’s initial dealings with Mr Yu [88]
The Liangshan Yi Co-operation Agreement [90]
Mr Gao’s investment in the joint venture [93]
Other evidence relating to the Liangshan Yi orchard [95]
Key factual findings [99]
Alleged joint venture with Mr Yuan, and offer to sell G3 to Mr Li [100]
Mr Gao’s dealings with Mr Li [101]
Alleged joint venture between Mr Yuan and Mr Gao [106]
Key factual findings [112]
Alleged dealings with Jiashang Agriculture and Mr Yang [114]
The evidence [114]
Key factual findings [118]
First cause of action: Did Mr Gao breach Zespri’s PVR rights? [119]
Mr Gao’s relevant acts within New Zealand [120]
Can Mr Gao and Smiling Face be concurrently liable for the same
conduct? [125]
Can the export of a protected variety infringe PVR rights? [128] Can an offer to sell a protected variety infringe PVR rights? [131] What consequences have flowed from Mr Gao’s relevant acts within
New Zealand? [134]
How have these consequences impacted Zespri? [138]Conclusion [143]
Second cause of action: Did Smiling Face breach Zespri’s PVR Rights
under the PVR Act in G3 and/or G9?............................................................ [144]
What damages are appropriate for the breaches of the PVR Act by
Mr Gao and Smiling Face?............................................................................. [148]
Extraterritorial application and damages issues [149]
What approach should be taken to quantifying damages?…
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- Case
- [2020] NZHC 109
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Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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