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 (11 March 2026)

1. At the final hearing of the notice of motion on 28 November 2025, the plaintiffs relied on eleven affidavits, being:

(a) four affidavits of Roger Jeffrey Horak filed 9, 15, and 24 October, and 21 November 2025;

(b) three affidavits of Pieter Marias, a farm manager employed by Karoh Pty Ltd and an employee of Mr Horak, filed 9, 15, and 17 October 2025;

(c) two affidavits of David Mark Stoffberg, an employee of OZ Varieties Pty Ltd, filed 9 and 24 October 2025;

(d) an affidavit of Jon Douglas Salters, the chief executive officer of the United Exports Group, filed 28 October 2025; and

(e) an affidavit of Mark Massoudi, an agricultural research and development professional specialising in plant molecular biology and genetics, filed 20 November 2025.

1. In opposition to the application, the defendants filed three affidavits of the second defendant, Vincent David Andrew Mazzardis, dated 15 and 20 October, and 7 November 2025.
2. Prior to the hearing, the parties filed lengthy objections to these affidavits, many of which were ultimately conceded. At the hearing, the parties agreed that in relation to the remaining objections, this material would be treated as submissions and not evidence.[3] The parties' evidence conflicted on numerous matters, some of which were material. As indicated at the hearing, it is not possible to resolve contested issues of fact on an interlocutory application in the absence of cross‑examination. Where allegations were credibly denied by the other parties, I have ignored the disputed allegations and determined the application on the matters that are not in dispute between the parties.[4]

1. The facts that were not in dispute between the parties can be summarised as follows.
2. The second plaintiff (Mr Horak) is the managing director of Bisa. The second and third defendants, Vincent and Leasa Mazzardis, are the directors and shareholders of Prunus.
3. Mr Mazzardis is a fruit breeder who has been breeding plants commercially since about 1992.[5] He currently undertakes this work at Lot 51, having previously undertaken the work at both Lot 50 and Lot 51.
4. On 1 June 2010, Prunus and Rolfe Nominees Pty Ltd as trustee for the Peter Rolfe Family Trust (Rolfe Nominees) entered into the Partnership Agreement.[6] In about November 2016, Bisa purchased Rolfe Nominees' interest in the Partnership for $4.275 million. This purchase (and the assignment of Rolfe Nominees' interest to Bisa) was the subject of a written agreement.[7]
5. The Partnership Agreement recognised three stages for the development and commercialisation of blueberries: the basic stage, the trial stage, and the commercial stage. The basic stage commenced upon Prunus attending to cross‑pollenisation and ended on the delivery of 'Cuttings' and/or 'Rooted Cuttings' to Bisa. The trial stage commenced on Bisa's acceptance of the Cuttings and/or Rooted Cuttings.
6. If a blueberry plant was approved by a joint decision of the partners for commercialisation after the trial stage, it was designated as a 'variety'. The Partnership granted licenses to various entities in different countries (or Territories) to grow these varieties.
7. Since 2017, Prunus has not delivered any blueberry plants to Bisa under the Partnership Agreement to undertake the trial stage,[8] although Mr Mazzardis has continued to breed new varieties since then.
8. In 2017, Mr Horak and Mr Mazzardis incorporated Next Progeny Pty Ltd (Next Progeny) to commercialise blueberry varieties. Mr Mazzardis' evidence is that these parties agreed that all new blueberry varieties were to be commercialised through Next Progeny, although Mr Horak's evidence on this matter is more equivocal.[9]
9. In about 2023, the commercial relationship between the plaintiffs and defendants started to deteriorate. As a result, in October 2024, Prunus gave three months' written notice to Bisa of the termination of the Partnership for convenience (Prunus Notice).[10] In response, Bisa issued a notice of default to Prunus, contending that Prunus had not complied with its obligations under the Partnership Agreement and requiring this default to be remedied within 21 business days. In December 2024, Bisa issued a notice of termination of the Partnership to Prunus (Bisa Notice).[11]
10. The plaintiffs say that the Disputed Material includes varieties selected in 2017 ‑ 2019, as well as selections that were originally located on Lot 50 but moved to Lot 51 when ownership of this lot was transferred from Mr Mazzardis to Mr Horak. The plaintiffs adduced evidence from Mr Salters and Mr Stoffberg, who have previously visited Lot 50. Their evidence was that each of the blueberry plants on Lot 50 was marked with a cross labelled to show the varieties from which each particular plant was bred. The plaintiffs submit that all blueberry plants bred from a variety owned by the Partnership is or may be Partnership property and that the Orders should continue to preserve these plants.
11. The plaintiffs contend the Disputed Material may have been removed from Lot 51 for the purpose of secreting germplasm which is the property of the Partnership to put it beyond the reach of the plaintiffs in the event they are successful in these proceedings.[12]
12. Mr Mazzardis does not deny the Disputed Material was removed from Lot 51 or that notice was not given to the plaintiffs of its removal. He says that he is the breeder and owner of the Disputed Material and was not required to give any notice to the plaintiffs. Mr Mazzardis' evidence is that he breeds and keeps blueberry plants at Lot 51 that are not Partnership property and that none of the seedlings bred between 2017 ‑ 2019 were suitable for further evaluation or commercialisation and have not been developed further. He says his breeding activities have always been kept separate from the Partnership and that he was never obliged or required to give any blueberry plants to the Partnership.[13]
13. Mr Mazzardis offered to provide an undertaking with respect to all blueberry material that is the property of the Partnership and Next Progeny.[14] This undertaking did not encompass all of the Disputed Material and was not accepted by the plaintiffs.

1. The principles to be applied on an application for an interlocutory injunction are well‑known. The court must consider whether there is a serious question to be tried, whether the plaintiffs are likely to suffer injury for which damages will not be an adequate remedy, and whether the balance of convenience favours the grant of the injunction.[15]
2. These questions are not independent of each other. It is necessary to assess the balance of convenience in the context of the strength of the prima facie case. If an applicant has a strong prima facie case, this may tip the balance in favour of the grant of the injunction.[16]
3. On an interlocutory application, the court does not form a concluded view on the merits of the plaintiffs' case nor as to any contested matters of law.[17]
4. It is necessary on an application for an interlocutory injunction for the applicants to identify the legal or equitable rights in respect of which final relief is sought. If the applicants are unable to do so, the foundation of the claim for interlocutory relief falls away. This is because the purpose of the grant of an interlocutory injunction is to preserve the subject matter of the dispute (or maintain the status quo) pending trial.[18]
5. For this reason, it is useful to start with a consideration of the plaintiffs' causes of action pleaded in these proceedings.

1. In their original statement of claim (filed on 19 March 2025), the plaintiffs plead three separate causes of action against the defendants: a breach of the Partnership Agreement, a breach of a separate oral agreement, and, in the alternative to the oral agreement, a claim based on promissory estoppel.
2. Bisa pleads that Prunus was obliged under cl 5.1 of the Partnership Agreement to breed and select new varieties from seedlings which were deemed suitable for trialling by the Partnership, to take Cuttings and/or Rooted Cuttings from these selected varieties, and deliver them to Bisa from time to time.
3. Bisa says that since about 2017, Prunus has breached these obligations by failing to select any possible new varieties from seedlings, or deliver Cuttings or Rooted Cuttings to Bisa.
4. Bisa says that Prunus is obliged to transfer its interest in the Partnership to it and seeks declaratory relief to this effect as well as orders for specific performance of Prunus' contractual obligations.
5. Separate to this claim, the plaintiffs plead that between 1 February and 31 May 2022, Mr Mazzardis on behalf of the defendants and Mr Horak on behalf of the plaintiffs entered into an agreement which was partly oral and partly implied. Relevantly, the plaintiffs say that pursuant to this agreement, they agreed that:

(a) Prunus would sell its interest in the Partnership to the plaintiffs;

(b) the defendants would sell to the plaintiffs their interest in two separate companies (Early Blue Pty Ltd (Early Blue) and Next Progeny); all of the vaccinium seeds, seedlings, cuttings and related germplasm in their possession; Lot 50 and the business conducted on this property for market value; and Lot 51 for market value; and

(c) the sale and purchase of Lot 50 and the business conducted on this property would occur immediately. The remaining assets would be sold when Prunus wanted to exit the Partnership.

1. The plaintiffs say that in part performance of this agreement, its' nominee purchased Lot 50 on 1 July 2022 for $4.5 million.
2. The plaintiffs say the Prunus Notice triggered the defendants' obligations under the agreement to sell their remaining interests to the plaintiffs, which the defendants have refused to do.
3. In the alternative, the plaintiffs rely on the same matters as the basis for a promissory estoppel claim.
4. On 21 November 2025, the plaintiffs filed an amended statement of claim which raised a number of additional allegations. The amended statement of claim refers to a number of other entities (including Early Blue and Next Progeny), various historical licence and sub‑licence agreements, and introduces a constructive trust claim (the diversion of an opportunity away from the Partnership). Because of the late filing of this amended pleading, at the time of the hearing, the defendants had not had an opportunity (and were not required under the Rules of the Supreme Court 1971 (WA)) to file their re‑amended defence or any affidavits addressing these allegations.
5. Prunus denies the Partnership Agreement imposed any positive obligations on it or that it has breached any term of the Partnership Agreement. The defendants say that during the 'Basic Stage', Prunus' obligation to deliver Cuttings or Rooted Cuttings to Bisa was in Prunus' absolute discretion from time to time.[19] It also says Bisa was not entitled to issue or rely on the Bisa Notice.
6. Prunus says that on 7 October 2024, in accordance with the terms of the Partnership Agreement, it gave more than three months' notice of the termination of the Partnership which took effect on 13 January 2025. As a consequence, the Partnership is required to be wound up and the assets distributed as provided by the Partnership Act 1891 (Qld), with each partner being entitled to bid at any such sale by public auction.
7. In the alternative, Prunus says that even if Bisa was entitled to issue the Bisa Notice, it was issued for the purpose of circumventing the effect of the Prunus Notice, was issued in bad faith and in breach of its duty of utmost good faith, or alternatively in breach of Bisa's duty to be just and faithful to Prunus. On this basis, Prunus contends the Bisa Notice was invalid and of no force and effect.
8. The defendants deny there was any oral agreement between Mr Horak and Mr Mazzardis as alleged. They also say that any agreement would be void for uncertainty or incompleteness, alternatively was an agreement to agree, alternatively not enforceable as it was not in writing, contrary to the Statute of Frauds.
9. Prunus also says that by an agreement between it and Bisa (which is partly written, partly oral and partly to be implied), they agreed that any varieties of blueberries bred after 2012 would not be sold through the Partnership but would be sold through Next Progeny.
10. The defendants deny the plaintiffs are entitled to the relief sought in the proceedings or any relief at all.
11. In reply, the plaintiffs accept there is an agreement between Mr Mazzardis and Mr Horak in relation to Next Progeny. The plaintiffs say the agreement was for the Partnership to provide new varieties to Next Progeny, for registration in its name, but deny this varied any obligations owed by Bisa and Prunus under the Partnership Agreement.

1. Senior counsel for the plaintiffs advanced four bases for their contention they were entitled to preservation of the Disputed Material. First, they say that on the terms of the Partnership Agreement, Prunus was obliged to make all blueberry material that had been bred over the last seven years available to the plaintiffs for the purposes of selection and delivery. Specifically, the plaintiffs contend there is a serious question to be tried as to whether cl 5.1(a)(ii) imposed an obligation on Mr Mazzardis to breed, select and deliver to Bisa, Cuttings and/or Rooted Cuttings from all blueberry seedlings that showed commercial potential. They say the Disputed Material was material that had been cross‑pollinated, grown into seedlings, identified as suitable and 'even [subject to] the taking of cuttings and rooted cuttings', but not delivered to Bisa as required by cl 5.1(a)(ii).[20]
2. Second, the plaintiffs say that anything bred from germplasm of the Partnership or Next Progeny is Partnership property. On this basis, the plaintiffs assert that all blueberry material in the defendants' possession is either Partnership property or property the Partnership may have an interest in.
3. Third, the plaintiffs say the Disputed Material is part of the material Mr Mazzardis orally agreed to sell to Mr Horak.
4. Fourth, the plaintiffs say that there is a serious question to be tried as to whether, by Mr Mazzardis undertaking breeding of blueberry plants for his own benefit, Prunus has breached the fiduciary duties it owes to Bisa and diverted a business opportunity of the Partnership to Mr Mazzardis. If this is the case, Mr Mazzardis will, in the plaintiffs' submission, hold all blueberry material bred by him on constructive trust for Bisa or the Partnership.
5. In addition to these grounds, at the final hearing, senior counsel for the plaintiffs also sought to frame the application for an extension of the Orders on a different basis, namely to protect evidence that was necessary for the proper disposition of the case.[21] In essence, the plaintiffs wanted an opportunity to collect leaf or stem samples from the relevant plants. The basis for this was the plaintiffs' suspicion that the varieties of blueberries bred by Mr Mazzardis after 2016 were bred from the same pool of plants and seeds developed during the Partnership. The plaintiffs say that this can be assessed by DNA testing,[22] which will show either that the new varieties share parentage with the Early Blue or Next Progeny varieties (which, in their submission, would evidence a breach of the Partnership Agreement) or that they do not (which would support the defendants' case). Given the Disputed Material will either support or damage its case, the plaintiffs say the Disputed Material is directly relevant to the issues in the proceedings and should be preserved to enable samples to be taken.[23] On this further basis, the plaintiffs sought a continuation of the Orders until trial.
6. The defendants deny the plaintiffs have established there is any serious question to be tried that the Disputed Material is Partnership property or property in which the Partnership may have an interest. Senior counsel for the defendants emphasised that at least some of the Disputed Material is the property of Next Progeny (who is not a party to these proceedings) and should not be the subject of any orders.
7. Senior counsel for the defendants drew attention to cl 5.2 of the Partnership Agreement which specifically set out the material that was owned by the second defendant and that which was owned by the Partnership. In their submission, cl 5.2(a) confirmed that Prunus owned all selected seedlings as well as basic selections. This encompassed all seedlings from which Cuttings, Rooted Cuttings, and trial selections were subsequently taken. As the owner of the selected seedlings and basic selections, Prunus submitted that it was entitled to use these materials as it saw fit, including by breeding new varieties of blueberries.
8. The defendants denied that cl 5.1(a)(ii) of the Partnership Agreement imposed any obligations on Prunus. In their submission, the words 'in its absolute discretion from time to time' qualified all of Prunus' obligations under this clause. The defendants say that on the terms of the Partnership Agreement, it was for Prunus alone to determine if a seedling was suitable to be a basic selection and if so, to deliver Cuttings and/or Rooted Cuttings to Bisa. As no new Cuttings or Rooted Cuttings have been delivered to Bisa since 2017, no trial stage had commenced nor has there been any trial selections. For this reason, there has been no material capable of becoming Partnership property since at least 2017.
9. The plaintiffs rejected the defendants' construction of cl 5.1(a)(ii) of the Partnership Agreement. In their submission, on its proper construction, the words 'in its absolute discretion from time to time' qualified the place of delivery to Bisa or, at the least, that there was a serious question to be tried as to whether this was the proper construction of the clause.
10. The majority of the parties' competing arguments turn on the proper construction of the Partnership Agreement. On this application, it is not necessary for the court to form a final view as to its proper construction, but to consider whether there is a serious question to be tried in relation to the plaintiffs' construction of the Partnership Agreement. This requires the court to consider the meaning of the words of the Partnership Agreement by reference to its text, context and purpose.[24]
11. The background to entry into the Partnership Agreement is recorded in the recitals. The recitals included the fact that the parties wanted to enter into the Partnership Agreement to record their entitlement to 'Partnership Assets', their respective duties, and how the 'Business' was to be conducted. 'Business' was defined to mean the business conducted by the Partnership from 1 June 2010, which included the breading and commercialisation of new varieties of blueberries.
12. 'Partnership Assets' was defined to mean the assets of the Partnership on the Commencement Date as well as assets acquired after the Commencement Date. This included but was not limited to all:

(a) Cuttings or Rooted Cuttings;

(b) Trial Selections;

(c) Varieties;

(d) Variety Rights;

(e) goodwill of the Business; and

(f) capital.

1. A 'Cutting' was defined to mean a portion of a stem cut from a parent plant for clonal reproduction of that plant and 'Rooted Cutting' meant a Cutting that had been induced to form roots and shoots.
2. Clause 5.1 of the Partnership Agreement set out three different stages in the development of blueberry varieties: namely a basic stage (cl 5.1(a)), a trial stage (cl 5.1(b)) and a commercial stage (cl 5.1(c)). The basic stage commenced on cross‑pollenisation and ended when Prunus delivered a Cutting or Rooted Cutting to Bisa for the purpose of trialling the Basic Selections. Relevantly, cl 5.1(a)(ii) provided that:

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] in Queensland or such other place nominated by [Bisa], in its absolute discretion from time to time.

1. In cl 5.2, the parties agreed that the first defendant owned all Selected Seedlings and Basic Selections (the basic stage), and that the Partners (defined as Bisa and Prunas) owned all:

(A) Cuttings or Rooted Cuttings, upon [Bisa] accepting delivery of the Cuttings or Rooted Cuttings pursuant to Clause 5.l(b)(ii)(A);

(B) Trial Selections;

(C) Varieties;

(D) Variety Rights;

(E) goodwill of the Business; and

(F) capital of the Partnership.

1. 'Selected Seedlings' was defined as 'the blueberry seedling selected by [Prunus] as satisfactory for the purpose of growing a blueberry bush so as to determine whether the blueberry bush meets [Prunus'] requirements to become a Basic Selection'. 'Basic Selection' was defined as 'a blueberry seedling grown by [Prunus] during the Basic Stage and selected by [Prunus] as being suitable for further trialling by the Partners during the Trial Stage'.
2. The Partnership Agreement imposed an obligation on each of Bisa and Prunus to diligently attend to the Business, be just and faithful to each other, do all things necessary to comply with the Partnership Agreement, and to promptly perform their obligations under it (cl 10.1).
3. Turning first to cl 5.1(a)(ii), for the following reasons, I consider there is a serious question to be tried as to whether Prunus has breached its obligations under cl 5.(a)(ii) of the Partnership Agreement.
4. 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.
5. 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).
6. Third, no Basic Selections have been delivered to Bisa since 2017.
7. However, this conclusion of itself does not mean that there is a serious question to be tried that all blueberry plant material in the defendants' possession is Partnership property. 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.
8. As part of the amendments made to the statement of claim on 21 November 2025, the plaintiffs say that certain Cuttings and Rooted Cuttings were selected for commercialisation by transferring their rights to Early Blue and Next Progeny; that these entities allowed Mr Mazzardis to use these plants for further breeding 'on condition that any new varieties would be the property of the Vaccinium Partnership'; and that new varieties have been bred since 2017. While the defendants emphasised they had not been afforded an opportunity to formally respond to this amended pleading, senior counsel for the defendants submitted that there was no evidence before the court to support these contentions. I accept this submission. Given this, I do not consider that, on the evidence adduced on the application, there is a serious question to be tried on these matters.
9. Turning then to the oral agreement, the plaintiffs contend that between February and May 2022, Mr Mazzardis agreed to sell Prunus' interest in the Partnership and all blueberry material in the defendants' possession to Mr Horak for $4.5 million. The agreement is said to be partly oral, based on two conversations between Mr Horak and Mr Mazzardis that occurred between 1 February 2022 and 31 May 2022, and partly implied.
10. Mr Horak's evidence in relation to this agreement is limited. In his first affidavit filed 9 October 2025, Mr Horak deposed that:[25]

I enforce an agreement I concluded with Dave in 2022 in terms of which, loosely put, when he decided he'd 'had enough' and wanted to exit our business, he would sell his interests in Vaccinium Partnership, Early Blue, Next Progeny and all related assets to me or my nominee. The particulars of this Agreement are set out in the Statement of claim. One of the terms of that agreement was that the plaintiffs or a nominee would purchase part of Dave's farm, known as Lot 50, along with the business conducted on it. Nominee companies of mine purchased Lot 50 and the business[.]

1. The particulars of the agreement in the statement of claim refer to two conversations between Mr Horak and Mr Mazzardis: the first on or about 1 February 2022 and the second between 2 and 31 May 2022. While the statement of claim sets out some particulars of these conversations, neither of these conversations is addressed by Mr Horak in his affidavit evidence. Without this evidence, it is not possible to assess whether there is a serious question to be tried as to the existence of an oral agreement, whether the parties intended any discussion would constitute a legally binding agreement, or whether, during any discussion, terms were agreed with sufficient certainty so as to give rise to an enforceable agreement.
2. Finally, in relation to the constructive trust claim, this claim was introduced in the amended statement of claim filed by the plaintiffs on 21 November 2025, shortly before the final hearing of the plaintiffs' notice of motion. As noted above at [68], the defendants had not had an opportunity to respond to this aspect of the plaintiffs' claim at the time of the hearing. Ultimately, I do not consider this to have caused any prejudice to the defendants for two primary reasons.
3. First, I consider this aspect of the plaintiffs' claim suffers from the same issue identified at [67] above, namely the Partnership Agreement did not give the Partnership rights in all blueberry material or in all breeding activities undertaken by Mr Mazzardis. On this basis, I do not accept that Mr Mazzardis' undertaking of any breeding activity could constitute a breach of any fiduciary duties Prunus owed to Bisa under the Partnership Agreement.
4. Second, much of the evidence relied upon by the plaintiffs at the hearing was either equivocal or, when considered carefully, did not support their submissions. By way of example, many of the documents relied upon by the plaintiffs referred to the breeding activities as being done by Mr Mazzardis personally before the material was passed to Prunus for delivery to the relevant member of the Partnership (first Rolfe Nominees and subsequently Bisa).[26] 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.
5. The plaintiffs also sought to rely on correspondence exchanged between Mr Horak and Mr and Mrs Mazzardis in respect of possible claims that could be made against Rolfe Nominees following its exit from the Partnership.[27] In my view, this correspondence also does not assist the plaintiffs' case. The matters raised in this correspondence are consistent with Mr Mazzardis being the owner of the Selected Seedlings and Mr Rolfe not being entitled (except within the confines of the Partnership Agreement) to use the Cuttings and Rooted Cuttings (ie Partnership property) for purposes not associated with the Partnership.
6. For these reasons, on the evidence before the court, I am not persuaded that there is a serious question to be tried that the defendants hold the Disputed Material on constructive trust for the first plaintiff.

Does the balance of convenience favour the granting of any relief?

1. Assessing the balance of convenience requires weighing the prejudice and injustice to the plaintiffs that would result if an interim injunction was not granted, but the plaintiffs ultimately succeeded at the hearing, against the prejudice and injustice to the defendants that would result if an interim injunction was granted, but the plaintiffs failed at the hearing.[28]
2. The plaintiffs say that the balance of convenience favours the granting of the interlocutory injunction on the basis that the continued removal, mixing or destruction of blueberry material by Mr Mazzardis could put Partnership property beyond their reach and prevent the plaintiffs from establishing a claim to the Disputed Material. The plaintiffs say that if this blueberry material is passed to third parties, it will be impossible to recover if it is planted, propagated and/or used for breeding.
3. The plaintiffs submitted that if the defendants were found at trial to have breached their obligations under the Partnership Agreement, damages would not be an adequate remedy. This is because, in their submission, blueberry breeding material is unique, and its value cannot be quantified if it is mixed with other material, destroyed or its whereabouts unknown. In their submission, damages could not 'restore the evidentiary utility of plants that have been displaced or interfered with'.[29]
4. The defendants deny the balance of convenience favours the grant (or continuation) of the injunction. In their submission, the orders sought by the plaintiffs would prevent Mr Mazzardis from continuing his usual breeding activities in accordance with his usual practices. These practices include the culling and discarding of unsuitable blueberry plants, which he says is an ordinary plant breeding practice that prevents accidental and unknown cross‑pollination. Given that some of these unsuitable plants are in the Disputed Material, Mr Mazzardis says he would suffer financial loss if he was prevented from removing and/or destroying all blueberry plants in his possession.[30]
5. The evidence of both Mr Salters and Mr Stoffberg is that Mr Mazzardis' practice was to mark the 'parents' of each blueberry plant and to mark seedlings that were of interest with a pink tag. Assumptions have then been made by these deponents, based on the age of the plant, as to when these plants were bred.
6. The primary issue with both the plaintiffs' submission and this evidence is that both proceed on the assumption that all blueberry material in the defendants' possession is Partnership property. As set out at [67], I do not consider there is a serious question to be tried on this aspect of their claim. While I accept there is a serious question to be tried as to whether the defendants breached their obligations under cl 5.2 of the Partnership Agreement, this would not entitle the plaintiffs after trial to an order for possession of the Disputed Material. Any relief would be limited to Cuttings and/or Rooted Cuttings from those blueberry seedlings that were or should have been selected for trial prior to the termination of the Partnership Agreement, including any that were developed into a variety. The orders would also need to take account of the rights and interests of Next Progeny, and how these overlap or intersect with the obligations of the parties under the Partnership Agreement.
7. The affidavit evidence of the parties demonstrates a significant degree of distrust between the parties and suspicions that each has about the others' conduct. However, this does not constitute evidence that the defendants do not maintain appropriate records or that the defendants are or have been wilfully destroying Partnership property.
8. In my view, there are two primary reasons the balance of convenience does not favour the continuation of the interim relief sought by the plaintiffs. First, the relief sought extends significantly beyond the relief the plaintiffs may be entitled to at trial. Second, if the relief sought by the plaintiffs were granted, there is a risk the orders would impact on the rights of Next Progeny, who is not a party to these proceedings and has not been heard on the orders sought.
9. As noted above, over the course of the hearing of the plaintiffs' notice of motion, the basis on which it was said the plaintiffs were entitled to the orders changed. At the initial ex parte hearing on 10 October 2025, senior counsel for the plaintiffs submitted that the Disputed Material might be Partnership property or property that the Partnership may have an interest in because Cuttings and Rooted Cuttings had not been selected. At the final hearing, emphasis was placed on the requirement for preservation of the Disputed Material to enable samples to be taken. A submission was advanced that the application was akin to an application for freezing orders.[31] As senior counsel for the defendants emphasised, these orders were not the subject of the application. The plaintiffs did not apply to amend their notice of motion nor was any additional application filed. On this basis, I have not considered nor addressed the question as to whether the plaintiffs would be entitled to take samples of the Disputed Material or whether a freezing order should be granted.

1. For these reasons, it is my view that the Orders granted on 28 November 2025 should not be further extended and the plaintiffs' notice of motion should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of Roger Jeffrey Horak filed 9 October 2025, 'RJH2'; Affidavit of Vincent David Andrew Mazzardis filed 7 November 2025, 'VDAM7'.

[2] While the minute of proposed orders states that the relevant lot is Lot 50, at the hearing senior counsel for the plaintiffs clarified that this should be a reference to Lot 51 (ts 55).

[4] Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41 [7].

[5] Affidavit of Vincent David Andrew Mazzardis filed 15 October 2025 [8].

[6] Affidavit of Vincent David Andrew Mazzardis filed 7 November 2025 [31], 'VDAM-7'.

[7] Affidavit of Roger Horak filed 9 October 2025 [33], 'RJH5'; Affidavit of Vincent David Andrew Mazzardis filed 7 November 2025 [94], 'VDAM-25'.

[8] Affidavit of Roger Horak filed 9 October 2025 [49].

[9] Affidavit of Vincent Mazzardis filed 7 November 2025 [64]; Affidavit of Roger Horak filed 21 November 2025 [37].

[10] Affidavit of Roger Horak filed 9 October 2025, 'RJH10'.

[11] Affidavit of Roger Horak filed 9 October 2025, 'RJH11', 'RJH12'.

[12] Plaintiffs' written outline of submissions filed 21 November 2025 (Plaintiffs' outline of submissions) [16].

[13] Affidavit of Vincent David Andrew Mazzardis filed 15 October 2025 [12], [30], [36].

[14] Affidavit of Vincent David Andrew Mazzardis filed 15 October 2025 [52].

[15] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57.

[16] Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238.

[17] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622.

[18] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199.

[22] Affidavit of Roger Jeffery Horak filed 24 October 2025 [6] - [7].

[24] Pilbara Iron Ore Pty Ltd v Ammon [2020] WASCA 92 [85] - [86], [90].

[25] Affidavit of Roger Jeffrey Horak filed 9 October 2025 [60].

[26] See, for example, affidavit of Roger Jeffrey Horak filed 21 November 2025, 'RJH3', 'RJH9', 'RJH14', 'RJH19'.

[27] Affidavit of Roger Jeffrey Horak filed 21 November 2025, 'RJH17'.

[28] Sidameneo (No 456) Pty Ltd v Plint [2015] WASC 243 [49].

[29] Plaintiffs' outline of submissions [65].

[30] Affidavit of Vincent David Andrew Mazzardis filed 15 October 2025 [21] - [23], [53] - [54].

[31] Plaintiffs' outline of submissions [73].