BISA TRADING PTY LTD AS TRUSTEE FOR THE CUAMA TRUST -v- MAZZARDIS [2026] WASCA 72

[2026] WASCA 72 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BISA TRADING PTY LTD AS TRUSTEE FOR THE CUAMA TRUST -v- MAZZARDIS [No 2] [2026] WASCA 72 CORAM : THOMSON P VAUGHAN JA ARCHER JA HEARD : 8 MAY 2026 DELIVERED : 28 MAY 2026 FILE NO/S : CACV 18 of 2026 BETWEEN : BISA TRADING PTY LTD AS TRUSTEE FOR THE CUAMA TRUST First Appellant ROGER JEFFREY HORAK Second Appellant AND LEASA VALERIE MAZZARDIS First Respondent PRUNUS PERSICA PTY LTD AS TRUSTEE FOR THE D&L PEACH TRUST Second Respondent VINCENT DAVID ANDREW MAZZARDIS Third Respondent -- 1 of 28 -- [2026] WASCA 72 Page 2 ON APPEAL FROM: Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA Coram : HILL J File Number : CIV 2496 of 2024 Catchwords: Practice and procedure - Interlocutory injunction - Partnership to breed commercial varieties of blueberries - One partner to supply blueberry plants and material to partnership for commercialisation - No plants supplied - Plants moved to another premises - Injunction sought to test whether any plants were derived from previous varieties owned by partnership - Whether serious question to be tried - Balance of convenience - Injunction granted to permit testing Legislation: Nil Result: Appeal allowed Orders made to restrain removal of plants until application for testing determined Category: B Representation: Counsel: First Appellant : K de Kerloy SC & G J Douglas Second Appellant : K de Kerloy SC & G J Douglas First Respondent : M D Cuerden SC & C Breheny Second Respondent : M D Cuerden SC & C Breheny Third Respondent : M D Cuerden SC & C Breheny -- 2 of 28 -- [2026] WASCA 72 Page 3 Solicitors: First Appellant : Douglas Lawyers Second Appellant : Douglas Lawyers First Respondent : Pacer Legal Second Respondent : Pacer Legal Third Respondent : Pacer Legal Case(s) referred to in decision(s): Nil -- 3 of 28 -- [2026] WASCA 72 THOMSON P Page 4 THOMSON P: 1 One partner in a terminated partnership seeks interim injunctive relief against the other partner, to prevent removal and disposal of property alleged to be partnership property. However, the other member of the partnership disputes that the property is partnership property. Should this court grant interim injunctive relief to allow samples of the property to be subject to testing, to determine whether it may be partnership property? 2 This common issue is at the heart of the present case, but it has a genetic twist to it. The partnership was formed to identify and commercialise new varieties of blueberries. The disputed partnership property is plant material from which initial breeding for blueberries occurs. There is a question about the extent to which the partnership has an interest in this plant material, and the extent to which the partner responsible for initial breeding can continue to use this plant material on its own account. 3 Notwithstanding the modern complication, it is an orthodox question, which necessarily requires a court to determine whether there is a serious question to be tried about a claim to partnership property, and also where the balance of convenience lies. 4 For the following reasons, I consider that the appeal should be allowed and that interim injunctive relief should be granted. Background 5 The first appellant (Bisa Trading) and the second respondent (Prunus Persica) are corporations who were parties to a partnership called the 'Vaccinium Partnership'. The second appellant (Horak) is the managing director of Bisa Trading. The third respondent (Mazzardis) is the managing director of Prunus Persica. The first respondent (Leasa Mazzardis) is Mazzardis' wife. Together they are the shareholders of Prunus Persica. 6 The partnership was formed in 2010, between Prunus Persica and another corporation, Rolfe Nominees Pty Ltd (Rolfe Nominees). In 2016, Bisa Trading purchased the interest of Rolfe Nominees for over $4 million.1 The partnership's business was to identify and breed 1 GAB 80 (Affidavit of R J Horak sworn 9 October 2025 [33]) (Horak affidavit 9 Oct 2025). See also Bisa Trading Pty Ltd as Trustee for the Cuama Trust v Prunus Persica Pty Ltd as Trustee for the D&L Peach Trust [2026] WASC 70 [15] (Reasons). -- 4 of 28 -- [2026] WASCA 72 THOMSON P Page 5 new varieties of blueberries. Essentially, Mazzardis was responsible for breeding new varieties, while Bisa Trading and Horak commercialised these varieties. Prior to 2016, since around 2012 or 2013, Horak had been involved in commercialising a blueberry variety, known as Early Blue, developed by the Vaccinium Partnership. This involvement had occurred through the grant of exclusive sub-licences for the Americas and Southern Africa to an entity controlled by Horak. 7 In 2017, after Bisa Trading had replaced Rolfe Nominees in the Vaccinium Partnership, Horak and Mazzardis formed a company called Next Progeny Pty Ltd (Next Progeny Co). Next Progeny Co has been used to commercialise further blueberry varieties developed by the Vaccinium Partnership including a variety known as Next Progeny. A similar model had previously been used for commercialising varieties of Early Blue, through Early Blue Pty Ltd (Early Blue Co). 8 Royalties have been paid from licencees in respect of both the Early Blue and Next Progeny varieties. Horak has deposed that since 2017 and until 2024 (not including 2025), Mazzardis and his wife have been paid more than $30 million in respect of royalties and other fees arising from Early Blue and Next Progeny plantings.2 9 From 2023, the relationship between Horak and Mazzardis deteriorated. Horak has deposed that one major cause of his frustration was that Mazzardis had not released any new varieties since 2017 (having released new varieties in 2008, 2009, 2010, 2012, 2013, 2014, 2016 and 2017), despite having been paid $19 million.3 10 On 7 October 2024, acting pursuant to the partnership agreement, Prunus Persica gave notice to Bisa Trading that the Vaccinium Partnership would terminate in more than 3 months, on 13 January 2025. Bisa Trading responded by giving a notice of default to Prunus Persica, dated 26 October 2024, alleging that Prunus Persica had not complied with its obligations to breed and select new varieties, and to deliver cuttings or rooted cuttings of those new varieties to Bisa Trading. Prunus Persica did not remedy that alleged default. Bisa Trading then gave notice to Prunus Persica, dated 5 December 2024, terminating the Vaccinium Partnership, and claiming transfer of the partnership interest of Prunus Persica pursuant to the terms of the partnership agreement. Prunus Persica claims that the partnership 2 GAB 81 (Horak affidavit 9 Oct 2025 [47]). 3 GAB 82 (Horak affidavit 9 Oct 2025 [49] - [50]). -- 5 of 28 -- [2026] WASCA 72 THOMSON P Page 6 dissolved on 13 January 2025, in accordance with the notice which it gave to Bisa Trading, and says that its assets should be sold by public auction, if the partners cannot agree on a sale between themselves. 11 Consequently, there is a dispute as to how the Vaccinium Partnership has been brought to an end, and the consequences of that. However, there does not seem to be any dispute that it has ended, one way or another. Nevertheless, it is critical to understand the extent of the partnership assets which will be either be sold to Bisa Trading (if it is correct about how the Vaccinium Partnership ended) or sold publicly (if Prunus Persica is correct). The obligation of Prunus Persica to provide new varieties of blueberries 12 Clause 5 of the partnership agreement concerns the partnership assets and liabilities. Clauses 5.1 and 5.2 specifically concern the development of new varieties. 13 Clause 5.1 divides the development of new varieties into three stages: the Basic Stage, the Trial Stage and the Commercial Stage. 14 Clause 5.1(a) concerns the Basic Stage. It provides: (i) The Basic Stage will commence upon Prunus Persica attending to Cross-pollenisation and ending upon Prunus Persica delivering Cuttings and/or Rooted Cuttings to [Bisa Trading] for the purpose of trialling the Basic Selections. (ii) During the Basic Stage, Prunus Persica will: (A) attend to Cross-pollenisation; (B) grow seedlings resulting from cross-pollenisation; (C) determine if any of the seedlings are suitable to be a Basic Selection; (D) take Cuttings and/or Rooted Cuttings from the Basic Selections; (E) deliver those as Cuttings or Rooted Cuttings to [Bisa Trading] in Queensland or such other place nominated by [Bisa Trading], in its absolute discretion from time to time. -- 6 of 28 -- [2026] WASCA 72 THOMSON P Page 7 15 The term 'Cross-pollenisation' is defined in cl 1.1 to mean: [T]he transfer of male pollen from a selected source to the female flowers (selected for its specific inherit trade) to produce hybrid seeds that are believed to produce Seedlings[.] 16 The term 'Basic Selection' is also defined in cl 1.1. It means: [A] blueberry seedling grown by Prunus Persica during the Basic Stage and selected by Prunus Persica as being suitable for further trialling by the Partners during the Trial Stage[.] 17 If a seedling is suitable for Basic Selection, then Cuttings or Rooted Cuttings are supplied to Bisa Trading. A 'Cutting' means 'a portion of the stem cut from the parent plant taken for clonal reproduction of that plant'; and a 'Rooted Cutting' means 'a Cutting that has been induced to form roots and shoots' (cl 1.1). 18 The 'Trial Stage' is addressed in cl 5.1(b). This clause provides: (i) The Trial Stage will commence upon [Bisa Trading] accepting delivery of the Cuttings or Rooted Cuttings from Prunus Persica pursuant to Clause 5.1(a)(ii)(E) and ending when a Trial Selection is selected by the Partners to become a Variety. (ii) During the Trial Stage: (A) [Bisa Trading] will accept delivery of the Cuttings or Rooted Cuttings from Prunus Perisca; (B) the Partners will:- (aa) grow Trial Selections from the same Basic Selections of which the Cuttings or Rooted Cuttings were taken; (ab) fruit the Trial Selections; (ac) document the phenological processes and assess the fruit from the Trial Selections; and (ad) by joint decision determine which of the Trial Selections are suitable to be a Variety. In the event that the Partners are unable to agree as to whether a Trial Selection should become a Variety, the Trial Selection will remain a Trial Selection. -- 7 of 28 -- [2026] WASCA 72 THOMSON P Page 8 19 The term 'Trial Selection' is defined in cl 1.1 to mean: [A] blueberry Cutting or Rooted Cutting, clonally established by the Partners from the same Basic Selection[.] 20 The final stage in the process of developing a new variety is the 'Commercial Stage'. Clause 5.1(c) provides: (i) The Commercial Stage commences upon a Trial Selection being selected to be a Variety pursuant to Clause 5.1(b)(ii)(B)(ad) and ending upon the Partners lawfully ceasing to be the registered owners of a Variety Right or such other date as determined by the Partners. (ii) During the Commercial Stage the Partners will make an application for registration of Plant Breeder's Rights in relation to each Varierty that they choose to pursuant to Clause 10.3 of this Agreement. 21 Clause 5.2 concerns the ownership and risk in respect of the various stages of developing a new variety. Clause 5.2(a) addresses the passing of ownership: (i) Prunus Persica will be the owner of all Selected Seedlings and Basic Selections. (ii) The Partners are the owners of all:- (A) Cuttings or Rooted Cuttings, upon [Bisa Trading] accepting delivery of the Cuttings or Rooted Cuttings pursuant to Clause 5.1(b)(ii)(A); (B) Trial Selections; (C) Varieties; (D) Variety Rights; (E) goodwill of the Business; and (F) capital of the Partnership. 22 Clause 5.2(b) concerns the risk in respect of partnership assets. It provides: (i) All Selected Seedlings and Basic Selections will be owned, possessed, used and dealt with at the risk of Prunus Persica. -- 8 of 28 -- [2026] WASCA 72 THOMSON P Page 9 (ii) From the date that [Bisa Trading] accepts delivery of a Cutting or Rooted Cutting the Cutting or Rooted Cutting will be owned, possessed, used and dealt with at the risk of the Partners. (iii) All Trial Selections, Varieties and Variety Rights, goodwill of the Business and capital of the Partnership will be owned, possessed, used and dealt with at the risk of the Partnership. 23 Prunus Persica has advanced a particular argument based upon the effect of these provisions. It potentially has two parts. 24 First, upon the proper construction of cl 5.1(a)(ii)(E), Prunus Persica has an unfettered discretion to choose which Cuttings or Rooted Cuttings it provides to Bisa Trading for the Trial Stage and possible commercialisation. As a corollary, Prunus Persica maintains that there is no obligation upon it to deliver any Cuttings or Rooted Cuttings to Bisa Trading, even if they might be suitable for the Trial Stage. On this basis, it is possible that Prunus Persica could choose to commercialise a variety with a different partner or by itself. 25 Secondly, even if Prunus Persica delivers Cuttings or Rooted Cuttings to Bisa Trading for the Trial Stage, and even if commercialisation of a variety occurs, Prunus Persica says that it is entitled to breed further, for its own purposes, from the plant material from which the Cutting or Rooted Cutting was taken. That is because the property in that plant material remains with Prunus Persica, and only property in the Cutting or Rooted Cutting becomes the property of the Vaccinium Partnership. See cl 5.2(a)(i). Further, Prunus Persica says that it is not obliged by any equitable duty to use such plant material for the benefit of the partnership, because the terms of any equitable duty cannot be inconsistent with the express contractual terms of the partnership agreement. 26 It is accepted by all parties that no new variety has been submitted by Prunus Persica for Trial Selection since 2017. However, it may be that Prunus Persica has engaged in breeding from the plant material for the two most successful varieties (Early Blue and Next Progeny) commercialised by the Vaccinium Partnership, before Bisa Trading purchased its interest from the previous partner. Whether this has occurred cannot be determined from the evidence filed in respect of the present application. -- 9 of 28 -- [2026] WASCA 72 THOMSON P Page 10 Removal of plant material 27 Originally, Mazzardis operated his breeding activities at a farm which he owned in Wilbinga, north of Perth. This consisted of two lots, identified for present purposes as Lot 50 and Lot 51.4 In 2022, Mazzardis sold Lot 50 to a company controlled by Horak.5 At this time Mazzardis moved his breeding operations across to Lot 51. He also moved the remaining stockpile of varieties, seedlings and plant material to Lot 51. Horak claims that this included Early Blue varieties, Next Progeny varieties and new crosses which Mazzardis had made but not delivered to the Vaccinium Partnership in recent years.6 28 In September 2025, Mazzardis removed a substantial amount of material from Lot 51. Horak has deposed that approximately 25% of all relevant plants on Lot 51 were removed, based upon what one of his employees observed.7 He also says that, since 2006 when he commenced working with Mazzardis, he had never observed plant removal from Mazzardis' farm on such a scale previously.8 29 Mazzardis accepts that he removed what he describes as 'Additional Plant Material' from Lot 51 in September 2025. He says, in a conclusionary way, that he kept and conducted breeding for other plants at Lot 51 which were not the property of the Vaccinium Partnership or Next Progeny Co.9 Mazzardis also says, again in a conclusionary way, that the entirety of material belonging to the Vaccinium Partnership and Next Progeny Co remains undisturbed and in his possession at Lot 51.10 In effect, these statements of conclusion depend upon an underlying and unarticulated premise about what property belongs to the Vaccinium Partnership and Next Progeny Co. 30 Relevantly, Mazzardis also says that: (a) he has 'always maintained separation in [his] breeding activities from the activities of the Vaccinium Partnership and Next Progeny [Co]';11 4 GAB 84 (Horak affidavit 9 Oct 2025 [66]); Lot 50 on Deposited Plan 61509, Certificate of title Volume 2743 Folio 595 and Lot 51 on Deposited Plan 61509, Certificate of title Volume 2743 Folio 596. 5 GAB 84 (Horak affidavit 9 Oct 2025 [66] - [67]). 6 GAB 84 (Horak affidavit 9 Oct 2025 [67]). 7 GAB 90 (Horak affidavit 9 Oct 2025 [106] - [107]). 8 GAB 90 (Horak affidavit 9 Oct 2025 [108]). 9 GAB 183 (Affidavit of V D A Mazzardis sworn 15 October 2025 [12]) (Mazzardis affidavit 15 Oct 2025). 10 GAB 185 (Mazzardis affidavit 15 Oct 2025 [38]). 11 GAB 185 (Mazzardis affidavit 15 Oct 2025 [30]). -- 10 of 28 -- [2026] WASCA 72 THOMSON P Page 11 (b) the last blueberry varieties which he supplied to Horak or his entities were certain varieties in which Next Progeny Co now holds Plant Breeder's Rights. This occurred from 2016 selections, derived from 2013 seed crosses made upon 2014 seedlings;12 (c) since providing these selections in 2016, he has taken his breeding program 'in a different direction, to hopefully result in more regular breeding of potentially successful new varities';13 (d) Horak does not know what plant material Mazzardis uses for new crosses, or the methods adopted by Mazzardis for breeding new crosses, because Mazzardis has not told these things to anyone.14 31 Mazzardis has provided a partial explanation, on affidavit, for removing the material from Lot 51 in September 2025. He said that part of the reason was because, in November 2024, an unidentified person had interfered with his irrigation system, which prevented some of his plants being watered. He also said that he had seen various items which had gone missing from Lot 51 turn up on Lot 50. However, Mazzardis accepted that he had no direct evidence of the identity of any person who interfered with the bore taps on his property, or who may have moved items from Lot 51.15 Application to prevent removal of plant material from Lot 51 32 On 9 October 2025, the appellants filed a notice of motion seeking the following substantive orders: 1. Until [date] or a further order of the court the defendants and their employees and agents be restrained and an injunction is hereby granted restraining them from moving any blueberry plants, blueberry plant cuttings, or blueberry plant germplasm ('Blueberry Plant Material') in their possession from its current location or locations other than in terms of order 4 below. 2. Within 72 hours of the service of this order upon them, the defendants file and serve an affidavit identifying the location or locations where they moved in the past 30 days any of the Blueberry Plant Material from its original location at Lot [51]. 12 GAB 191 (Affidavit of V D A Mazzardis sworn 20 October 2025 [22]) (Mazzardis affidavit 20 Oct 2025). 13 GAB 192 (Mazzardis affidavit 20 Oct 2025 [23]). 14 GAB 191 (Mazzardis affidavit 20 Oct 2025 [19]). 15 GAB 186 (Mazzardis affidavit 15 Oct 2025 [39] - [41]). -- 11 of 28 -- [2026] WASCA 72 THOMSON P Page 12 3. The defendants file with the court and serve on the plaintiffs an affidavit containing a detailed inventory of all Blueberry Plant Material in their possession within 3 business days, including, but not limited to, the number of plants, each variety name or, in the case of crosses, each parent. 4. The defendants shall return any Blueberry Plant Material which has been moved in the last 30 days to its original location at Lot [51]. 5. The defendants shall permit the plaintiffs and the plaintiffs' appointed agents or representatives to inspect any Blueberry Plant Material in the possession of the defendants at the locations specified in the affidavit referred to in order 2 above on 48 hours notice in writing. 33 This application was made ex parte, and on 10 October 2025 the primary judge made interim orders restraining the defendants and their employees and agents from moving any blueberry plants, cuttings or germplasm in their possession from their current location or locations.16 The application was heard substantively on 28 November 2025, and the primary judge made orders dismissing the application on 11 March 2026. During the pendency of the application, the interim orders made on 10 October 2025 had been maintained.17 34 The primary judge then continued the interim orders, after dismissing the application, until 25 March 2026. This was to allow the appellants the opportunity to preserve the status quo until the Court of Appeal had heard an urgent application for continuation of the interim orders pending the hearing of an appeal. On 23 March 2026, this court effectively decided to extend the interim orders until the hearing of this appeal. At the hearing, the interim orders were extended until the disposition of the appeal. The appellants' revision of relief sought 35 At the oral hearing of the appeal, the appellants orally revised the relief which they sought. In effect, the appellants' senior counsel limited the application to a restraint upon the respondents in moving any Blueberry Plant Material until the appellants had been able to arrange for an expert to test and report upon the genetic derivation of the Blueberry Plant Material. If this testing demonstrated that the Blueberry Plant Material was derived from varieties of blueberry which 16 Reasons [6]. 17 Reasons [7]. -- 12 of 28 -- [2026] WASCA 72 THOMSON P Page 13 were partnership property (ie Early Blue or Next Progeny), the appellants would renew the application for further injunctive relief. Decision of primary judge No serious question to be tried 36 The primary judge reached the view that there was a serious question to be tried as to whether Prunus Persica had breached its obligations under cl 5.1(a)(ii) of the partnership agreement.18 The primary judge said:19 First, by the use of the word 'will' in the chapeau to cl 5.1(a)(ii), there is a serious question to be tried as to whether this clause imposed a positive obligation on Prunus to undertake the five tasks outlined in this clause. Second, as the phrase 'absolute discretion from time to time' is part of subparagraph (E), there is a serious question to be tried that it is only the place of delivery to Bisa that is qualified by these words and not the entirety of the obligations of Prunus under this subclause. In my view, if the parties had objectively intended for the entirety of Prunus' obligations under this clause to be at its absolute discretion, it is more likely that these words would appear in the chapeau after 'will' or in a separate line after subparagraph (E). Third, no Basic Selections have been delivered to Bisa since 2017. 37 However, the primary judge said that this conclusion did not mean that there was a serious question to be tried as to whether all Blueberry Plant Material in the possession of the respondents was property of the Vaccinium Partnership. The primary judge said:20 As senior counsel for the defendants submitted, cl 5.2 of the Partnership Agreement draws a distinction between the material that is owned by the defendants and that which is Partnership property. The Partnership Agreement did not grant the Partnership any rights in the blueberry genetic material; its rights were limited to Cuttings, Rooted Cuttings and other clonal material (that is, plants derived from asexual reproduction) which were derived from Basic Selections. Given this, I do not accept there is a serious question to be tried as to whether, under the Partnership Agreement, all blueberry material in the defendants' possession is Partnership property or property in which the plaintiffs may have an interest. 18 Reasons [63]. 19 Reasons [64] - [66]. 20 Reasons [67]. -- 13 of 28 -- [2026] WASCA 72 THOMSON P Page 14 38 The primary judge also relied upon this analysis to conclude that the partnership agreement did not give the partners rights in all Blueberry Plant Material, or in all breeding activities undertaken by Mazzardis. The primary judge did not accept that Mazzardis' undertaking of any breeding activity would constitute a breach of any fiduciary duties Prunus Persica owed to Bisa Trading under the partnership agreement.21 39 The appellants also relied upon correspondence which demonstrated that breeding activities had been done by Mazzardis personally before material was passed to Prunus Persica for delivery to the partnership. The primary judge said:22 In my view, Bisa's real complaint is that not all blueberry plants bred by Mr Mazzardis were subsequently delivered to the Partnership. This is the same complaint as raised by its claim that Prunus has breached the Partnership Agreement. 40 The primary judge also considered an argument by the appellants that Early Blue Co and Next Progeny Co had allowed Mazzardis to use their plants for further breeding 'on condition that any new varieties … would be the property of the [Vaccinium] Partnership'.23 The primary judge found that there was no evidence to support this contention.24 Further, the primary judge held that there was no evidence before her to support an argument that there was a serious question to be tried about the existence of an oral agreement in February or May 2022, by which the respondents agreed to sell all Blueberry Plant Material in their possession to Horak.25 41 For these reasons, the primary judge said that she was not persuaded, on the evidence before the court, that there was a serious question to be tried that the respondents held all Blueberry Plant Material which had been removed from Lot 51 on constructive trust for Bisa Trading.26 Balance of convenience against injunctive relief 42 The primary judge considered that the balance of convenience was against granting the interim injunctive relief sought. Essentially, this 21 Reasons [73]. 22 Reasons [74]. 23 BAB 31 (Amended Statement of Claim [13B]). 24 Reasons [68]. 25 Reasons [69] - [71]. 26 Reasons [76]. -- 14 of 28 -- [2026] WASCA 72 THOMSON P Page 15 was because of her Honour's conclusion that there was no serious question to be tried about a proprietary claim to this material, and therefore the interim injunctive relief would go beyond the relief which the appellants would be entitled to obtain after trial. As well, the primary judge was concerned that there was a risk that the injunctive orders would impact upon the rights of Next Progeny Co, which was not a party to the proceedings.27 43 The primary judge also referred to the appellants' submission that it was necessary to preserve the material which had been removed from Lot 51 to enable samples to be taken. The primary judge said that the appellants did not apply to amend their notice of motion to seek sampling, nor did they file any additional application for such relief. Consequently, the primary judge said that she had not considered or addressed the question as to whether the appellants would be entitled to take samples of the disputed material or whether a freezing order should be granted to enable this to occur.28 Appeal ground 3 / Contention grounds 1 and 2: serious question to be tried 44 The third appeal ground challenges the primary judge's decision that there was no serious question to be tried that the respondents hold 'the Disputed Material' (ie the Blueberry Plant Material removed from Lot 51) on constructive trust for Bisa Trading. The appeal ground alleges that the primary judge failed to consider: (a) the appellants' case that the disputed plant material in the respondents' possession may be derived from Partnership material and thereby subject to the appellants' proprietary claim (ground 3(a)); and (b) the appellants' equitable claim that plant material developed outside the Partnership, in diversion of Partnership opportunities in breach of fiduciary duty, might be subject to a constructive trust (ground 3(b)). 45 The primary position of the respondents was that Prunus Persica had no obligation under cl 5.1(a)(ii)(E) to deliver suitable cuttings to Bisa Trading in its capacity as a member of the Vaccinium Partnership. Their contention was that it was a matter of unfettered discretion for Prunus Persica and Mazzardis whether they chose to commercialise a 27 Reasons [84]. 28 Reasons [85]. -- 15 of 28 -- [2026] WASCA 72 THOMSON P Page 16 variety through the Vaccinium Partnership by delivering a Cutting or Rooted Cutting pursuant to cl 5.1(a)(ii)(E). The primary judge rejected this and considered that there was a serious question as to whether Prunus Persica had a duty to deliver all suitable Cuttings or Rooted Cuttings to Bisa Trading for the Trial Stage.29 Contention Ground 1 46 Assuming that the contractual construction just outlined was seriously arguable, the respondents contended, by ground 1 of their notice of contention, that the primary judge was incorrect as a matter of fact in finding that there was a serious question to be tried that Prunus Persica had breached its obligations under cl 5.1(a)(ii). 47 The respondents effectively say that there was no question to be tried about a breach of obligations by Prunus Persica, because the appellants had not identified any Cuttings or Rooted Cuttings which, arguably, should have been delivered. The respondents contend that it is not sufficient to say that there were no Cuttings or Rooted Cuttings delivered since 2017, as there may well have been no suitable Cuttings or Rooted Cuttings to deliver. 48 In my view, the respondents' contention should not be accepted. Mazzardis has deposed that in his understanding, he has 'never been under any obligation or requirement to give any material which [he has] bred to any other entity, be it the Vaccinium Partnership or Next Progeny [Co] or anyone else.'30 49 On the construction which the primary judge accepted as seriously arguable, there would have been an obligation or requirement under cl 5.1(a)(ii) to deliver suitable Cuttings or Rooted Cuttings to the Vaccinium Partnership.31 Consequently, it is seriously arguable that Mazzardis misunderstood whether Prunus Persica had an obligation to deliver suitable Cuttings or Rooted Cuttings to the Vaccinium Partnership. 50 Having misunderstood the potential existence of the obligation, Mazzardis made no attempt to comply with it, while carrying out continuing breeding activities. Moreover, he does not expressly depose to the fact that since 2017, there were no suitable Cuttings or Rooted Cuttings to deliver to the Vaccinium Partnership if the obligation 29 Reasons [62] - [66]. 30 GAB 185 (Mazzardis affidavit 15 Oct 2025 [36]). 31 Reasons [62] - [66]. -- 16 of 28 -- [2026] WASCA 72 THOMSON P Page 17 existed, where this was something peculiarly within his knowledge. This was in a context where Prunus Persica had delivered suitable Cuttings or Rooted Cuttings on a number of occasions over the preceding years (leading to the release of new varieties in 2008, 2009, 2010, 2012, 2013, 2014, 2016 and 2017). 51 In those circumstances, I do not consider that there was any error by the primary judge in concluding that it was seriously arguable that Prunus Persica had breached an obligation which Mazzardis maintained did not exist and with which he did not attempt to comply. I would reject the respondents' first ground of contention. Appeal ground 3(b) 52 Moving then to appeal ground 3(b), the primary judge considered that even if Prunus Persica breached the obligation in cl 5.1(a)(ii), Prunus Persica did not hold any plant material which should have been delivered to the Partnership on trust for members of the Partnership. This was due to the operation of cl 5.2(a), which specified that Prunus Persica would be the owner of all Selected Seedlings and Basic Selections, while the Partners would be the owners of delivered Cuttings or Rooted Cuttings, Trial selections, Varieties and Variety Rights. 53 In my view, the operation of cl 5.2(a) is predicated upon proper compliance with cl 5.1. If Prunus Persica delivers Cuttings or Rooted Cuttings as required, cl 5.2 declares who holds property rights. However, I do not regard it as foreclosing the possibility that, if Prunus Persica fails to comply with its duties as a partner in breach of cl 5.2(a)(ii), arguably Prunus Persica will hold the property rights declared by cl 5.2 on constructive trust for the members of the Vaccinium Partnership. That does not cut across the operation of cl 5.2. 54 Rather, the imposition of a constructive trust in respect of plant material which should have been delivered as Cuttings or Rooted Cuttings adopts the operation of cl 5.2 as the starting point in respect of legal ownership of that material, but imposes a constructive trust upon Prunus Persica to hold that material for the benefit of the Partnership. Moreover, as the plant material has not been turned into Cuttings or Rooted Cuttings, the constructive trust should cover the whole of the plant material which could have produced the Cuttings or Rooted Cuttings. -- 17 of 28 -- [2026] WASCA 72 THOMSON P Page 18 55 This analysis means that there is a serious argument available as to the equitable proprietary ownership of material which should have been used to produce Cuttings or Rooted Cuttings, notwithstanding cl 5.2(a) of the partnership agreement. Appeal ground 3(a) / Contention ground 2 56 Turning then to appeal ground 3(a), if any of the disputed material is derived from varieties (ie Early Blue and Next Progeny) which have been developed and commercialised by the Vaccinium Partnership, this would arguably involve use of partnership assets for the benefit of Prunus Persica only. Having regard to the operation of cl 5.2(a)(ii)(C) and (D), there is no doubt that the Varieties and Variety Rights are owned by the Partnership members. 57 It is difficult to know whether any of the disputed material is derived from varieties developed by the Vaccinium Partnership. That is because of the conclusionary way in which Mazzardis asserts that he has engaged in separate personal breeding activities, in circumstances where he has not told anyone how he engages in new personal breeding activities.32 As this is a matter peculiarly within his own knowledge, it is difficult for Bisa Trading to positively establish that any of the disputed material is derived from varieties developed by the Vaccinium Partnership. However, I consider that there is a sufficient basis to say that there is a seriously arguable question about this. That is because Mazzardis appears to regard all plant material in his possession as his own and available to use for breeding purposes. 58 For these reasons, I consider that appeal ground 3 is established, and that there is a serious question to be tried about whether any of the disputed material held by Prunus Persica is held on constructive trust for the members of the Vaccinium Partnership. 59 In reaching this conclusion, it also means that I necessarily reject ground 2 of the respondents' notice of contention. That ground is premised upon cl 5.2(a) having the effect that Prunus Persica will never arguably hold the disputed material on trust for the Vaccinium Partnership, and that the effect of the injunctive relief sought would be to extend beyond protection of the appellants' legal, equitable or statutory rights. 32 GAB 191 (Mazzardis affidavit 20 Oct 2025 [19] - [20]). -- 18 of 28 -- [2026] WASCA 72 THOMSON P Page 19 Appeal ground 1: balance of convenience and injunction to allow testing 60 This appeal ground has two parts. Given that the appellants have now narrowed their claim for an injunction on appeal to limit its effect to allow testing of samples of the disputed plant material, it is only necessary to deal with the second part of this appeal ground. This is to the effect that the primary judge, having failed to appreciate that the application was directed to the preservation of evidence (including sampling and testing), erred in law in failing to consider and determine whether appropriately tailored interlocutory relief could be granted, and instead treated the breadth of the orders sought as a reason to refuse relief altogether. 61 The primary judge understood that the appellants maintained that an injunction could be granted to permit testing of the disputed material. That is evident from the reference which her Honour makes to the submission at the conclusion of her reasons for judgment.33 It is also consistent with the express submission made orally by senior counsel for the appellants at the final hearing before the primary judge. He said:34 Well, we frame our claim, really, on the basis that this is a protection of evidence application. In one sense, it's the preservation of evidence that is necessary for the proper disposal, the just disposal of this case, when your Honour comes to try it, if it doesn't settle beforehand, and absent the preservation of this material, because of there being a[n] information asymmetry, we haven't got the ability to assess the material if it's not preserved and put in a place where it can be tested. 62 However, the primary judge was not prepared to entertain that basis for injunctive relief, as she said that such orders were not the subject of the application before her and the appellants did not apply to amend the motion before her or file a fresh application.35 63 During oral argument on the appeal, the court was informed that a separate application for orders to permit sampling and testing had been made pursuant to O 52 of the Rules of the Supreme Court 1971 (WA), and that a hearing had been ordered to occur before the primary judge on the first available date after 26 June 2026, to determine the nature of a testing regime and who should conduct it. It did not appear that there was substantial dispute about whether testing should be permitted, but 33 Reasons [85]. 34 Transcript, Bisa Trading Pty Ltd as Trustee for the Cuama Trust v Prunus Persica Pty Ltd as Trustee for the D&L Peach Trust, Supreme Court of Western Australia, 28 November 2025, 36 (Ts). 35 Reasons [85]. -- 19 of 28 -- [2026] WASCA 72 THOMSON P Page 20 the area of contention concerned who should be allowed to carry out the testing. 64 In my view, it was an error in considering the question of the balance of convenience for the primary judge not to consider and determine, as an alternative to granting an injunction until trial, whether the balance of convenience would favour granting injunctive relief until testing or sampling could be carried out under O 52 r 2 of the Rules of the Supreme Court. It was evident that the balance of convenience would be affected by a much shorter restraint upon the respondents in preventing them dealing with the disputed material. That would be a very material matter in considering whether to grant the injunctive relief sought. 65 Accordingly, I consider that ground 1 is made out to this extent. Appeal ground 2: Next Progeny Co's rights 66 As explained, one of the reasons why the primary judge considered the balance of convenience was against granting the injunctive relief sought was because a restraint applying to all disputed material removed from Lot 51 would interfere with blueberry material belonging to Next Progeny Co.36 I infer that is because Next Progeny Co was the entity which commercialised the Next Progeny variety, and owned the rights in respect of that variety. 67 It has not been suggested by the respondents that the entirety of the blueberry material in dispute belonged to Next Progeny Co. However, the respondents have not identified specific material which could be excised from the disputed material on account of belonging to Next Progeny Co. 68 Moreover, there is an element of artificiality about separately protecting the rights of Next Progeny Co when, in effect, it is apparently a corporate vehicle through which the partners chose to conduct certain commercialisation activities. Horak and Mazzardis are the directors of Next Progeny Co. 69 Appeal ground 2 claims that the primary judge erred in law and in fact in finding that interference with the rights of Next Progeny Co by the orders sought provided a reason for concluding that the balance of convenience did not favour continuation of the injunction. 36 Reasons [84]. -- 20 of 28 -- [2026] WASCA 72 THOMSON P Page 21 70 In my view, any difficulty concerning interference with the rights of Next Progeny Co may be adequately addressed by reserving the right for Next Progeny Co to make an application to vary the orders for injunctive relief if it considers that there will be unnecessary interference with any of its rights. 71 Consequently, I do not consider that the primary judge was correct in concluding that the rights of Next Progeny Co provided a reason why the balance of convenience was against granting the relief sought. Again, this ground of appeal succeeds. Appeal ground 4 / Contention ground 3 72 In circumstances where the primary judge has erred in determining whether to grant the relief sought, it now falls to this court to determine for itself whether to grant the relief now sought by the appellants. This means that it is unnecessary to determine whether there was further error by the primary judge as alleged by appeal ground 4. As well, it is unnecessary to consider ground 3 of the notice of contention, which claims that it would be procedurally unfair to grant relief where the respondents had not had the opportunity to respond to certain new allegations introduced at a late stage by the appellants. This court may take this into account in considering what relief to now grant. Resolution of appellants' application 73 The appellants have now made a separate application for orders pursuant to O 52 of the Rules of the Supreme Court to enable sampling and DNA testing of the material removed from Lot 51. As indicated, this application is to be heard before the primary judge on the first available date after 26 June 2026. Senior counsel for the respondents (properly) accepted that this court could have regard to this application.37 74 Senior counsel for the respondents also indicated that:38 So as to our attitude to the application, in principle, we have absolutely no objection to sampling and testing. 75 However, senior counsel for the respondents said that the respondents required the sampling and testing to be performed by a 37 Appeal ts 63. 38 Appeal ts 64. -- 21 of 28 -- [2026] WASCA 72 THOMSON P Page 22 truly independent expert, not by an expert retained by the appellants who was advising them.39 76 After making this point, the following exchange occurred with the court:40 CUERDEN, MR: Could I add this additional matter, which is that the sampling and testing arises logically, in this court, only at the point at which there has been - held to be an error by the learned primary judge, and the discretion falls to be re-exercised, and so it goes to the question of discretion and balance of convenience. We point to - insofar as this is the hook on which the appellants wish to hang their hat, we say there has been very considerable delay, and even when the appellants were given an indication that they should get on with that application at the interim injunction application hearing, they did write to us, but they've made no meaningful attempt to engage with us what we would say is a legitimate concern about the independence of the experts. So for example, if Hill J was to form the view that we were right, and it should be a truly independent expert, the answer might be that her Honour dismisses the application and the appellants are back to square one, whereas we've invited them within the relatively recent past to engage with us now about that question, and get on with it and get that testing and sampling done. THOMSON P: And this was a point that I wanted to ask. You don't say that there should be no testing of the disputed material; you just say that it should be by an independent expert. CUERDEN, MR: Correct. THOMSON P: And so can we assume that testing in some form or other will occur? CUERDEN, MR: If the appellants agree to something that we say is sensible, or her Honour accepts that it should be Mr Massoudi, their expert, then the testing will occur. The question is when. Can I just make this - at the risk of being seen to be a pedant, your Honour said the material should be tested. No one suggests that it should be all of it; it's samples of the material. But we accept - - - THOMSON P: Yes, but samples of the disputed material. CUERDEN, MR: Yes, yes. We accept that it's - I mean, can I say this. We have a very different view from the appellants as to where that 39 Appeal ts 64. 40 Appeal ts 65 - 66. -- 22 of 28 -- [2026] WASCA 72 THOMSON P Page 23 takes them substantively in terms of the claim, but that's a different issue. We're happy to say on the appellant's [sic] view of the law and the case that if they think this is relevant and gets them anywhere, we're happy to participate in that process. 77 Having regard to this exchange, it appears to be accepted that if this court determines (as I have) that the primary judge erred in not granting injunctive relief, it would be appropriate to now grant relief to allow testing and sampling to occur, to the extent that the application now pending before the primary judge succeeds. The appellants accepted that they do not seek injunctive relief beyond this at present. This was made clear in the following exchange with the bench:41 THOMSON P: So you would only seek an injunction until testing has occurred, or alternatively - I presume - - - DE KERLOY, MR: Well, reporting, not testing. THOMSON P: Sorry? DE KERLOY, MR: Reporting. THOMSON P: Yes. But presumably, if the application before Hill J does not succeed, and testing is not allowed, then you would not maintain the injunction. DE KERLOY, MR: Well, there would be - what point would that be, your Honour? THOMSON P: Very well. So we can regard all of your orders wanted as qualified by only wishing to seek the injunction until the end of testing. DE KERLOY, MR: Yes, subject to the point that we were discussing about once we get the testing, it doesn't cover whether there was some material that should have been - it might determine provenance, but it doesn't cover whether there is some material that falls within the contractual claim, and should have been delivered. THOMSON P: Yes. Well, it doesn't tell you about the corporate diversion. DE KERLOY, MR: No, no. It doesn't tell you about that, but we're prepared to do it in - - - THOMSON P: But you're not - are you saying, then, that you would renew your injunction in relation to just that basis, or - - - 41 Appeal ts 61 - 62. -- 23 of 28 -- [2026] WASCA 72 THOMSON P Page 24 DE KERLOY, MR: We may have to, your Honour. THOMSON P: Right. I see. Okay. DE KERLOY, MR: We're content to, as Justice Vaughan said, put our foot on at this stage. THOMSON P: So taking it in stages - - - DE KERLOY, MR: In stages. THOMSON P: - - - and if the testing doesn't happen, or it doesn't yield results that you like, you would then maybe have to come back and argue the corporate diversion basis. DE KERLOY, MR: Yes, because then - yes. THOMSON P: Yes, I see. 78 In all of these circumstances, it is appropriate to grant injunctive relief requiring the respondents to preserve all Blueberry Plant Material removed from Lot 51, and also to preserve all Blueberry Plant Material presently on Lot 51, until the testing and sampling application brought by the appellants before the primary judge is resolved. 79 The appellants have indicated that they seek the injunctive relief to extend until after they have received reports from the testing and sampling. However, I consider that this is a matter which relates to the testing and sampling application, and the extent that any injunctive relief should remain after that application has been heard and determined is a matter for the primary judge. For example, if the primary judge dismisses the application, the basis for the injunctive relief falls away. Orders 80 For the reasons set out above, the orders I propose to make are as follows: 1. The appeal be allowed. 2. Orders 1 and 2 made by the Honourable Justice Hill on 11 March 2026 be set aside. 3. In lieu of Order 2 thereof, it be ordered that the respondents' costs of the notice of motion before the Honourable Justice Hill be reserved to the trial judge. -- 24 of 28 -- [2026] WASCA 72 THOMSON P VAUGHAN & ARCHER JJA Page 25 4. It is further ordered that, upon the second appellant's undertaking as to damages dated 15 March 2026, until the determination of the application made by the appellants before the Honourable Justice Hill by a Minute of Proposed Orders dated 15 April 2026, the respondents, and their employees and agents, be restrained and an injunction is hereby granted restraining them from moving any and all blueberry plants, blueberry cuttings, and germplasm in their possession from their current location or locations. 5. For the avoidance of doubt, the respondents may reasonably prune, remove fruits, remove or spray for pesticides or maintain blueberry material referred to in Order 4 in accordance with good breeding practices and usual historical practice. 6. There be liberty to the parties, and to Next Progeny Pty Ltd and Early Blue Pty Ltd, to apply, upon 72 hours' notice to all interested parties, for the primary judge to vary or discharge Order 4. 7. The costs of the appeal to be reserved to the trial judge. VAUGHAN & ARCHER JJA: 81 We have the considerable advantage of having read the reasons for decision of Thomson P in draft. 82 We agree with Thomson P that the appeal should be allowed and that orders to the effect of those proposed at [80] above should be made. We would, however, reach this view by both: (1) dismissing notice of contention ground 1; and (2) upholding grounds of appeal 1 and 2. In each case we would do so for the reasons given by Thomson P on those matters. In addition, as to notice of contention ground 1, we would dismiss the ground for the reasons that follow at [83] - [94] below. 83 By ground 1 of the notice of contention, the respondents contend that the primary judge erred in law in finding that there was a serious question to be tried that Prunus Persica had breached its obligations under cl 5.1(a)(ii). 84 The respondents assert that the primary judge made that finding because no Basic Selections had been delivered to Bisa Trading since -- 25 of 28 -- [2026] WASCA 72 VAUGHAN & ARCHER JJA Page 26 2017. The respondents submit that the primary judge construed cl 5.1(a)(ii) as requiring Prunus Persica to deliver Cuttings regardless of whether Prunus Persica had determined that there were any seedlings suitable to be a Basic Selection.42 The respondents note that the primary judge did not make a finding that there was a serious question to be tried that blueberry seedlings were or should have been selected by Prunus Persica for trial.43 85 We accept that the respondents' assertion is supported to an extent by the learned primary judge's reasons. However, when the reasons are read fairly and as a whole, we do not accept that her Honour construed cl 5.1(a)(ii) in that way. Such a construction would sit uneasily with the words of the clause and it is to be expected that, if this was her Honour's construction, it would have been expressly referred to. Further, neither party advanced such a construction. In addition, while her Honour did not expressly find that there was a serious question to be tried that blueberry seedlings were or should have been selected by Prunus Persica for trial, for the reasons we now come to, we are satisfied that such a finding is implicit in her Honour's finding at [66] that no Basic Selections had been delivered to Bisa Trading since 2017. 86 The respondents then contend that, if her Honour did (correctly) construe the obligations as inter-related, her Honour could not have found that Prunus Persica had breached cl 5.1(a)(ii)(C), even if her Honour was correct to find that the words 'in its absolute discretion' in cl 5.1(a)(ii)(E) qualified only cl 5.1(a)(ii)(E). The respondents contend that there was no evidence that there were seedlings suitable for Basic Selection, such that Prunus Persica's failure to select any seedlings could breach cl 5.1(a)(ii)(C). 87 We do not accept this. 88 First, there was a history of near yearly releases of new varieties up to 2017, yet no Basic Selections had been delivered to Bisa Trading since 2017. 89 Second, there was Mr Mazzardis' evidence. 90 Mr Mazzardis deposed that he and Mr Horak had agreed that Nature Select Pty Ltd (which Mr Mazzardis and his wife control) would have the discretion to not provide new varieties to Next Progeny 'if we 42 WAB 53, 55 - 57 [1] - [3], [13] - [20]. 43 WAB 56 [18]. -- 26 of 28 -- [2026] WASCA 72 VAUGHAN & ARCHER JJA Page 27 didn't want to'.44 He deposed that, in his understanding, he has 'never been under any obligation or requirement to give any material which [he has] bred to any other entity, be it the Vaccinium Partnership or Next Progeny [Co] or anyone else'.45 On the construction which the primary judge accepted as seriously arguable, Prunus Persica was obliged under cl 5.1(a)(ii) to determine if any seedlings were suitable to be a Basic Selection and, if so, to take Cuttings and/or Rooted Cuttings from the Basic Selections and deliver them to the Vaccinium Partnership.46 Consequently, it is seriously arguable that Mr Mazzardis misunderstood Prunus Persica's obligation to deliver Cuttings or Rooted Cuttings from suitable seedlings to the Vaccinium Partnership. 91 Having not understood cl 5.1(a)(ii) to oblige Prunus Persica to deliver Cuttings or Rooted Cuttings from suitable seedlings to the Vaccinium Partnership, it may be inferred, at least arguably for the purpose of the interlocutory relief sought by the appellants, that Mr Mazzardis did not attempt to comply with such an obligation while he was continuing to carry out breeding activities. It may also be inferred, again at least arguably, given the near yearly releases of new varieties up to 2017, that there were seedlings suitable to be a Basic Selection, but that Prunus Persica did not select them in breach of cl 5.1(a)(ii)(C). 92 In our view, the evidence was sufficient to establish an arguable case that there were seedlings suitable for Basic Selection, but which had not been selected. On her Honour's construction of the words 'in its absolute discretion' in cl 5.1(a)(ii), this would mean that the failure of Prunus Persica to select any seedlings was at least arguably a breach of cl 5.1(a)(ii)(C). 93 Finally, the respondents contend that it was not the appellants' case (at first instance or on appeal) that Prunus Persica had acted in bad faith or unreasonably in the determination and selection process in cl 5.1(a)(ii).47 This is undoubtedly true. However, it is beside the point. The appellants' case included an assertion that cl 5.1(a)(ii) required that, if there were seedlings suitable for selection, Prunus Persica was obliged to select them.48 44 GAB 185 [35]. 45 GAB 185 [36]. 46 Reasons [62] - [66]. 47 WAB 56 [16]. 48 BAB 32 (Amended Statement of Claim) (14). -- 27 of 28 -- [2026] WASCA 72 VAUGHAN & ARCHER JJA Page 28 94 For these reasons, we do not consider that the primary judge erred in concluding that it was seriously arguable that Prunus Persica had breached an obligation which Mr Mazzardis maintained did not exist and with which it may be inferred he did not attempt to comply. We would therefore reject ground 1 of the respondents' notice of contention. 95 In addition, so far as it is necessary to do so, we would also dismiss notice of contention ground 2. This contention must fail for the same reason that ground of appeal 1 succeeds - the appellants' contention is not that all of the disputed material is partnership property but rather that it includes a presently unidentifiable subset to which proprietary rights may attach. 96 Once this point is reached the balance of convenience favours - and it is in the interests of justice to order - interim injunctive relief for a limited time to allow the primary judge to determine the appellants' testing and sampling application. To do otherwise would tend to frustrate or inhibit the due administration of justice insofar as underlying evidentiary materials critical to the appellants' case are likely to cease to be available for inspection, sampling and testing for the purpose of the primary proceedings. 97 It is not necessary, on the view that we take, to determine grounds of appeal 3 and 4. Notice of contention ground 3 falls away so far as we would allow the appeal relying on grounds of appeal 1 and 2 rather than ground of appeal 3. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. DC Associate to the Honourable President Thomson 28 MAY 2026 -- 28 of 28 --